Winstead v. Sweeney
Decision Date | 20 June 1994 |
Docket Number | Docket No. 142459 |
Citation | 205 Mich.App. 664,517 N.W.2d 874 |
Parties | , 23 Media L. Rep. 1563 Denise WINSTEAD, Plaintiff-Appellant, v. Ann SWEENEY and Gannett Company, Inc., d/b/a the Detroit News, Defendants-Appellees. |
Court | Court of Appeal of Michigan — District of US |
Geno T. Zayid, Southfield, for plaintiff.
Butzel Long by James E. Stewart and Leonard M. Niehoff, Detroit, for defendants.
Before CORRIGAN, P.J., and J.H. GILLIS, Sr., * and STARK, ** JJ.
Plaintiff appeals a June 17, 1991, Wayne Circuit Court order granting defendants' motion for summary disposition and dismissing her complaint based on invasion of privacy by publication of embarrassing private facts and on gross negligence. On appeal, plaintiff claims that the court improperly decided questions that should have been left for the trier of fact. Having considered the factual record in full, Locricchio v. Evening News Ass'n, 438 Mich. 84, 110, n. 14, 476 N.W.2d 112 (1991), cert. den., --- U.S. ----, 112 S.Ct. 1267, 117 L.Ed.2d 495 (1992), we reverse and remand for further proceedings.
Plaintiff's claims arise out of an article appearing in the "Accent" section of The Detroit News on February 16, 1989. Defendant Ann Sweeney was the author of the article. The focus of the article was unique love relationships involving friends or family members of former mates. The Detroit News solicited information for the article by running an advertisement in the paper. Plaintiff's former husband apparently responded to the advertisement and related details of his relationship with plaintiff and a couple with whom they were friends. The article included the former husband's story in quotation marks and identified the persons involved by their first names only. There were no age references, no career references, no location references, or other specific and obvious identifying facts in the article beyond the use of the first names.
The details of the article included that "Denise" had several abortions, engaged in partner swapping, and was involved in a surrogate parenting relationship with her former husband, "Tim," and her maid of honor, "Linda," because "Denise" was unable to have children. Plaintiff filed suit, alleging that the article invaded her privacy by publishing embarrassing private facts that others who were close to her had not known before the article was published. Specifically, plaintiff alleged that her husband, friends, family, and boss had not known about the events that were within the article, but upon reading the article immediately equated plaintiff with "Denise." Plaintiff also included a count of gross negligence in her complaint.
Defendants answered the complaint and, as an affirmative defense, raised the defense of privilege under the common law of Michigan, the Michigan Constitution, and the First Amendment of the United States Constitution. On February 15, 1991, defendants moved for summary disposition pursuant to MCR 2.116(C)(8) ( ) and 2.116(C)(10) ( ). In support of the motion, defendants averred that it was plaintiff's former husband who revealed the information, that he had every prerogative to do so, that the information within the article was privileged because it was "newsworthy," and that many of plaintiff's friends and relatives were already aware of the facts revealed in the article. With respect to the count alleging gross negligence, defendants alleged that the publication was protected by the First Amendment and that, as a matter of law, no claim could be stated. Plaintiff contested the motion, and a hearing was conducted, following which the court took the matter under advisement to further consider the newsworthy defense. 1
On June 7, 1991, the court issued a ruling from the bench. The court concluded that the newsworthy defense applied to this situation as a matter of law, speculating that this Court would continue to follow the approach of the Restatement of Torts of providing broad protection for the press and its reporting of newsworthy information. See 3 Restatement Torts, 2d, § 652D, comments d, j, pp 388, 393. Thereafter, the court granted defendants' motion for summary disposition, from which plaintiff now appeals. 2
Plaintiff's suit is based upon an alleged invasion of the right to privacy and is grounded in the common-law theory recognizing liability for public disclosure of embarrassing private facts. See generally Beaumont v. Brown, 401 Mich. 80, 93-98, 257 N.W.2d 522 (1977). In order to sustain such a claim, plaintiff must demonstrate that the disclosed information is highly offensive to a reasonable person and that the information is of no legitimate concern to the public. Fry v. Ionia Sentinel-Standard, 101 Mich.App. 725, 728, 300 N.W.2d 687 (1980) ( ). The information published must concern the individual's private life and must not have been a matter of public record or otherwise exposed to the public eye. Ledsinger v. Burmeister, 114 Mich.App. 12, 24, 318 N.W.2d 558 (1982); Fry, supra, 101 Mich.App. at 729, 300 N.W.2d 687.
Even where an action for invasion of privacy otherwise might lie, the First Amendment sometimes protects the media from such an action. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Gilbert v. Medical Economics Co., 665 F.2d 305, 307 (CA 10 1981). As stated by the court in Gilbert, this "constitutional privilege" applies in cases where it is alleged that the defendant invaded the plaintiff's privacy through the publication of private facts. Id. In making the determination whether the privilege applies, it is of paramount importance to determine whether the information published is of legitimate public concern (i.e., is newsworthy). See Fry, supra, 101 Mich.App. at 729-730, 300 N.W.2d 687. Virtually every case we have reviewed in this area adopts or cites with approval the provisions of the Restatement of Torts in this regard. Id. See also Time, Inc. v. Hill, 385 U.S. 374, 388-389, 87 S.Ct. 534, 542-543, 17 L.Ed.2d 456 (1967); Gilbert, supra, 665 F.2d at 307-308; Prosser & Keeton, Torts (5th ed), § 117, pp 860-861, and cases cited therein.
The Restatement of Torts includes the following parameters within which the press should operate in this regard:
When the matter to which publicity is given is true, it is not enough that the publicity would be highly offensive to a reasonable person. The common law has long recognized that the public has a proper interest in learning about many matters. When the subject-matter of the publicity is of legitimate public concern, there is no invasion of privacy. [3 Restatement Torts, 2d, § 652D, comment d, p. 388.]
One such matter of public concern is that information commonly referred to as "news." The Restatement's position on what constitutes "news" is as follows:
Included within the scope of legitimate public concern are matters of the kind customarily regarded as "news." To a considerable extent, in accordance with the mores of the community, the publishers and broadcasters have themselves defined the term, as a glance at any morning paper will confirm. Authorized publicity includes publications concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal. [Id., comment g, pp. 390-391.]
More appropriate to the circumstances in this case is the Restatement's position with respect to "[e]ducation and information":
The scope of a matter of legitimate concern to the public is not limited to "news," in the sense of reports of current events or activities. It extends also to the use of names, likenesses or facts in giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published. [Id., comment j, p. 393.]
See also Fry, supra, 101 Mich.App. at 730, 300 N.W.2d 687. As one court put it, liability under this theory is saved for those extreme cases where an editor abuses the broad discretion to publish matters that are of legitimate public interest. Gilbert, supra, 665 F.2d at 308.
In Campbell v. Seaberry Press, 614 F.2d 395, 397 (CA 5 1980), the court explained the scope of the privilege as follows:
[T]he privilege extends to information concerning interesting phases of human activity and embraces all issues about which information is needed or appropriate so that individuals may cope with the exigencies of their period. See generally Time, Inc. v Hill, 385 US at 388; 87 SCt at 542; 17 LEd2d at 467; [ (1967) ] Thornhill v Alabama, 310 US 88, 102; 60 SCt 736, 744; 84 LEd 1093, 1102 (1940). The ambit of protection offered by the ... privilege often encompasses information relating to individuals who either have not sought or have attempted to avoid publicity.... The privacy of such individuals is protected, however, by requiring that a logical nexus exist between the complaining individual and the matter of legitimate public interest.
In Campbell, the United States Court of Appeals upheld the district court's grant of summary judgment in favor of the defendants because the district court properly determined that there was a logical nexus between the facts published about the plaintiff and the matter of public interest. Id.
Notwithstanding the apparent breadth of the privilege, it is not unlimited. According to the Restatement:
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