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AMI422Issues—Claim for Damages Based Upon Invasion of Privacy by Public Disclosure of Private F...

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 422
Arkansas Model Jury Instructions-Civil
November 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 4. Intentional Torts and Defamation
AMI 422 Issues—Claim for Damages Based Upon Invasion of Privacy by Public Disclosure of Private Facts
(Plaintiff) claims damages from (defendant) for invasion of privacy by public disclosure of private facts about (plaintiff), and has the burden of proving each of seven essential propositions:
First, that [he][she] sustained damages;
Second, that (defendant) made a public disclosure of a fact about (plaintiff);
Third, that before this disclosure the fact was not known to the public;
Fourth, that a reasonable person would find disclosure of the fact highly offensive;
Fifth, that (defendant) knew or should have known that the disclosed fact was private;
Sixth, that the fact was not of legitimate public concern; and
Seventh, that the public disclosure of the fact was a proximate cause of (plaintiff)'s damages.
The term “public disclosure” means communicating to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge.
A public disclosure is highly offensive when a reasonable person would feel seriously upset or embarrassed by it. Public disclosure of normal daily activities or of unflattering conduct that would cause minor or even moderate annoyance to a person of ordinary sensitivities cannot be considered highly offensive.
In determining whether the fact[s] were not of legitimate public concern, the following factors should be considered: (1) the social value of the fact published, (2) the depth of the intrusion into (plaintiff)'s private affairs, (3) the extent to which (plaintiff) voluntarily placed [himself][herself] into a position of public notoriety, [(4) the nature of the state's interest in preventing the disclosure,] (5) whether the fact is a matter of public record [and (6) if the fact publicized concerned events that occurred in the past, whether there is any continued public interest in the fact published].
[If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for (plaintiff); but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for (defendant)].
NOTE ON USE
Do not use the final bracketed paragraph when the case is submitted on interrogatories or if an affirmative defense is utilized.
Use the bracketed language in the next to the last paragraph only if the evidence warrants.
COMMENT
The privileges and defenses applicable to defamation also apply to invasions of privacy involving publication. Restatement (Second) of Torts §§ 652F to 652G (1977). See Dunlap v. McCarty, 284 Ark. 5, 9, 678 S.W.2d 361, 363–364 (1984) (applying the one-year limitations period applicable to slander claims to bar an invasion of privacy claim based solely on spoken words); Williams v. American Broadcasting Cos., Inc., 96 F.R.D. 658, 669 (W.D. Ark. 1983); (examining whether a reporter's or journalist's privilege barred a discovery request by plaintiff asserting a privacy claim); Restatement (Second) of Torts § 652D (1977).
The First Amendment limits the availability of civil damages for truthful publication of lawfully obtained information concerning a matter of public concern. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001) (application of private damages remedy under federal and state wiretap statutes to truthful publication of lawfully obtained information that was illegally intercepted by an unknown person violated First Amendment); The Florida Star v. B.J.F., 491 U.S. 524, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (1989) (imposition of civil damages on newspaper for accurately publishing name of rape victim lawfully obtained from publicly released police report violated First Amendment); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975) (civil damages award for publication of name of rape-murder victim lawfully obtained from courthouse records violated First Amendment).
Relying on Ward v. Blackwood, 41 Ark. 295, 298 (1883), as well as the Restatement (Second) of Torts § 652I (1977), the court in Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, at 8, held that the Arkansas survival statute, Ark. Code Ann. § 16-62-101, does not provide for the claim of invasion of privacy by intrusion upon seclusion (AMI 420) to survive the death of the decedent. Although the issue was not before the court in Cannady, the court's reliance on Ward and the Restatement suggests that a claim for invasion of privacy by public disclosure of private facts would also not survive the death of the decedent.
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