TO: Kate Dobson
FROM: Eric Webster
DATE: 11/1/00
RE: Nominsky / Illegal Wiretap and Invasion of Privacy


II. Has a person who divulges details about another's sex affair with a major public official, to persons she knows to be affiliated with media outlets and who subsequently disclose the information to the public, violated that person's right to privacy?


II. Yes. Although the official's affair may be in the legitimate public interest, graphic and explicit details are not.


II. Invasion of Privacy

Lipp is likely liable for damages to Nominsky. Nominsky has a right not to have her private affairs made known to the public. Carr v. Watkins , 177 A.2d 842 (1962). Since Carr , the court has adopted the Restatement (Second) of Torts definition that unreasonable publicity given to a persons private life is an invasion of privacy. Arroyo v. Rosen , 648 A.2d 1074 (Md. Ct. Spec. App. 1994) This Restatement identifies four varieties of invasion of privacy: (a) Unreasonable intrusion upon the seclusion of another ; (b) Appropriation of the other's name or likeness ; (c) Unreasonable publicity given to the other's private life ; [and] (d) Publicity which unreasonably places the other in a false light before the public. Restatement (Second) of Torts 652A. According to 652D of the Restatement,

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public."

Before addressing the nature of subject matter disclosed, we must determine what constitutes "publicity" and "private life."

Lipp's actions gave "publicity" to Nominsky's life. A matter is made public when a person communicates it to people who are certain to make it known to the public at large. Arroyo v. Rosen, 102 Md. App. 101; 648 A. 2d 1074; 1994 Md. App. LEXIS 149. In Arroyo , a doctor was found to have invaded another's privacy when she disclosed classified information to a small group of people, including a reporter for a general circulation newspaper. The court reasoned that telling something to a reporter was tantamount to making it public because it was substantially certain to become public knowledge. Id , at 1081. While 652D, comment a, of the Restatement states "it is not an invasion of privacy to communicate a fact concerning the plaintiff's life to a single person or even a small group of persons," it continues "'Publicity,' on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. It is communication which reaches, or is sure to reach the public . The distinction in, other words, is one between private and public communication." A person can therefore "publicize" a matter even by relating the information to two or three individuals, provided one of them is sure to make the matter public. Lipp would be incorrect to assert that telling two or three people is not enought to constitute publicity: when she divulged information to individuals she knew to be affiliated with the media, she was certain that the information would become public once she shared it.

Nominksy can show that the information divulged was both private and highly offensive. 652D, supra. Comment b from the Restatement is explicit: "sexual relations, for example, are normally entirely private matters, as are disgraceful or humiliating illnesses." Although "offensive" remains undefined in the Restatement and in Maryland case law, we can presume that any reasonable person would be offended to have details of their sex life made public; comment b seems to confirm this view. Lipp's publicizing of sexual matters constitutes making public details of Nominsky's private life.

Details of Nominsky's sex life are not in the legitimate interest of the public. By giving publicity to the specifics of Nominsky's sex life (which are clearly not in the public interest) as well as to the fact that the President was engaged in an extramarital affair (which might be in the public interest), Lipp revealed more than the law allows.

The proper balance of privacy and freedom of the press, is that "every private fact disclosed must have some substantial relevance to a matter of legitimate public interest." Gilbert v. Medical Economics 665 G.2d 305 (10th Cir. 1981). In Gilbert , a medical magazine published an article about the failure of physicians and hospitals to adequately police themselves. To illustrate the point, the writer described the problems of Dr. Gilbert, who faced several malpractice claims, using her name and photograph. The writer also included details about Gilbert's psychiatric and family problems that, arguably, led to her carelessness and eventual errors with patients. Gilbert claimed that these details were private information that were not of legitimate public concern. Pointing to Virgil , Gilbert argued that although the story itself was newsworthy, the private details were not. The court, however, sought to strike a balance between privacy rights and editorial discretion. "The first amendment [sic.] sometimes protects what would otherwise be an actionable invasion of privacy where a publication of the media is involved." Id. at 307. The court then reasoned that although an editor must be given some discretion about what details to include in the article, protection "ceases to operate only when an editor abuses his broad discretion to publish matters that are in the legitimate public interest." Id. at 308.

The President's adulterous affair may have been within the sphere protected by the First Amendment, but details of the nature that Lipp revealed are not, since they lack substantial relevance to the legitimate public interest. The court also noted that "[e]ven where certain matters are clearly within the protected sphere of legitimate public interest, some private facts about an individual may lie outside that sphere." Id.

There is one potential weakness in this argument. Lipp will argue that the details she revealed were "substantially relevant" to the newsworthy topic of the President's adulterous affair. This determination may include a consideration of whether the details added authenticity or urgency to the story. Specifically, she will argue that explicit details of the sexual acts between Nominsky and the President are equivalent to the publication, in Gilbert (supra), of a doctor's name, picture, and private history. The Gilbert court ruled that plaintiff's "name, photograph, and psychiatric and medical problems are substantially relevant to the newsworthy topic of policing the medical profession" because they added an aura of authenticity and urgency that might otherwise be lacking from the story and because there was a reasonable connection between the problems in Dr. Gilbert's personal and professional lives." Id. at 305.

In Gilbert, however, the public was in danger and had a right to know about this doctor's history of malpractice and problems that might contribute to endangering the public. As the Gilbert court declared, "under these circumstances [i.e. Gilbert's patients and colleagues might not otherwise learn of the risks] the public has a very strong and immediate legitimate interest." Id. at 309. While specifics of Nominsky's activity's with the President may have added an "aura of authenticity" to Lipp's story, there was no "reasonable connection" between the details revealed and the topic in the "immediate legitimate" public interest.

The public was not entitled to hear details of the private affair between Nominsky and the President. "The line is to be drawn when the publicity ceases to be the giving to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say he had no concern " Restatement (Second) of Torts 652D comment h. Though the public may have been entitled to know of the President's affair, the explicit details revealed fall within the ordinary meaning of "morbid and sensational" and a "reasonable member of the public, with decent standards" would likely say that he had no concern with them.


All the requirements for invasion of privacy have been met, but the exception of the "legitimate public interest" is the weakest part of our case. Defense will have to prove that the public was somehow even remotely endangered by the sexual relationship between Nominsky and the President, while we will have to establish that it was a strictly personal matter that Lipp was exposing to public view. Though the story of the President's infidelty may newsworthy, graphic and explicit details of Nominsky's private life are not. I think a jury will find the same to be true, and will secure a judgment in our favor on this issue.