In a prior post we discussed the first of the four privacy torts, intrusion. In this post we will move on to the public disclosure of private facts. In particular, we’re interested in whether the public disclosure of the private fact of a superhero’s secret identity would give rise to a tort claim. Unfortunately, in most cases it probably would not.
The definition of disclosure varies slightly among jurisdictions, so we will use the definition in the Restatement (Second) of Torts § 652D, which has been adopted directly by some jurisdictions. See, e.g., Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. Ct. App. 1989:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his 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.
As an initial matter, note that this only covers public disclosure, which generally means wide disclosure to many people. “Except in cases of physical intrusion, the tort must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few.” Porten v. Univ. of San Francisco, 64 Cal. App.3d 825, 828 (Cal. Ct. App. 1976). We’re really talking about the media or other broad disclosure, not gossip among friends or family, although note that the physical intrusion exception may cover someone who breaks into the superhero’s headquarters in order to determine his or her secret identity.
Now let’s break the analysis down according to the two main elements, (a) and (b). As discussed in the post on intrusion, I think the revelation of one’s secret identity would be highly offensive to a reasonable person for two reasons. First, for many superheroes, it would mean the end of any hope for a normal life: journalists, fans, and process servers would become an endless source of annoyance. Second, it would pose a significant danger to the superhero’s friends and family, who would become targets for his or her enemies. Having one’s secret identity disclosed would “shock the ordinary person to the point of emotional distress.” Roe ex rel. Roe v. Heap, 2004-Ohio-2504, 2004 WL 1109849 (Ohio Ct. App. 10th Dist. Franklin County 2004).
The second element is harder to satisfy because it raises First Amendment issues, and it is this element that kills many claims of invasion of privacy by disclosure. From Diaz v. Oakland Tribune, 139 Cal. App.3d 118, 126 (Cal. Ct. App. 1983) (citations omitted):
[T]he right to privacy is not absolute and must be balanced against the often competing constitutional right of the press to publish newsworthy matters. The First Amendment protection from tort liability is necessary if the press is to carry out its constitutional obligation to keep the public informed so that they may make intelligent decisions on matters important to a self-governing people. However, the newsworthy privilege is not without limitation. Where the publicity is so offensive as to constitute a “ ‘morbid and sensational prying into private lives for its own sake, …’ ” it serves no legitimate public interest and is not deserving of protection.
As you can see, the First Amendment exception is very broad, and what limits there are may not extend as far as a superhero’s secret identity. Here, to the extent there is any protection, I think it depends on who the alter ego is. Knowing that a billionaire industrialist who is involved in politics through donations and fundraising (i.e. Bruce Wayne) is also Batman might well be a “matter important to a self-governing people” about which the public should be informed. But knowing that a particular news photographer is Spiderman may be less relevant to the public, especially when Peter Parker was a minor.
Another factor that may be relevant is whether the disclosing party could reasonably foresee a risk of criminal misconduct towards the superhero or his or her friends and family. At least one court has held that the disclosure of such endangering information is not protected. Remsburg v. Docusearch, 149 N.H. 148 (2003). But note that other courts have erred on the side of newsworthiness, even where the danger was evident (in one case, death threats). Duran v. Detroit News, 504 N.W.2d 715 (Mich. Ct. App. 1993).
A few other things to note. First, all of this basically goes out the window if the superhero is accused of a crime (unless he or she is a minor). This is actually a pretty big deal, because many if not most superhero characters will be accused of a crime at some point, and the legal status of so-called “vigilantes” is frequently a subject of some debate, particularly since Frank Miller’s The Dark Knight Returns. But even the most upstanding superheroes are occasionally framed for crimes committed by others; this is actually a recurring theme in many continuities.
In addition, the more famous the superhero, the less protected his or her identity:
[T]here is a public interest which attaches to people who by their accomplishments, mode of living, professional standing or calling, create a legitimate and wide-spread attention to their activities. Certainly, the accomplishments and way of life of those who have achieved a marked reputation or notoriety by appearing before the public[, for instance] actors and actresses, professional athletes, public officers, noted inventors, explorers, war heros, may legitimately be mentioned and discussed in print or on radio or television. Such public figures have to some extent lost the right of privacy, and it is proper to go further in dealing with their lives and public activities than with those of entirely private persons.
Carlisle v. Fawcett Publications, Inc., 201 Cal. App. 2d 733, 746–47 (5th Dist. 1962). Similarly, “[w]hile public figures do not relinquish all privacy rights, … the heightened public interest in their personal activities is a factor to be weighed in balancing the competing interests.” Gilbert v. National Enquirer, Inc., 43 Cal. App. 4th 1135, 1146 (2d. Dist. 1996). So while Batman benefits a great deal from Bruce Wayne’s money and connections, it’s a double-edged sword.
Finally, I’ll note that it is possible, at least in some jurisdictions, to bring the lawsuit under a fictitious name so as to avoid further publicity. In the case of a superhero’s secret identity being revealed, however, I don’t think such a simple ruse would do much to avoid the gaze of the media for long.
Ultimately, the fact that superheroes put themselves in the public eye, coupled with the courts’ reluctance to interfere with the media, may mean that a superhero has little recourse against someone who discloses the superhero’s secret identity. The best case would be a lesser-known superhero whose secret identity is an average person and whose friends and family would be put at significant risk if his or her identity were disclosed. The further one gets from those facts, the less likely a court is to intervene.