Common-Law Tort of Public Disclosure of Private Facts: Alabama and Florida Compared

Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.

The privacy tort of public disclosure of private facts occupies a distinctive doctrinal niche. Unlike defamation, it provides no remedy for falsehood—truth is not a defense. Unlike breach of confidentiality, it requires no prior relationship between publisher and subject. It punishes the act of bringing genuinely private, genuinely true information before the public eye. That combination of features makes it both powerful in the right case and severely constrained by the newsworthiness doctrine, which in practice absorbs most claims that reach the appellate level.

I. The Restatement Framework

The authoritative formulation appears in Restatement (Second) of Torts § 652D (1977):

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 a legitimate concern to the public.

The elements, as distilled by courts applying § 652D, are: (1) publicity—communication to the public at large, or to so many persons that the matter is substantially certain to become public knowledge; (2) disclosure of private facts—information the subject has not made public; (3) the disclosure is highly offensive to a reasonable person of ordinary sensibilities; and (4) the information is not of legitimate public concern.

Two doctrinal points are often misunderstood. First, "publicity" under § 652D is not satisfied by a communication to a single third party—that is the requirement for defamation, not for this tort. The Restatement distinguishes "publication" (communication to any third party) from "publicity" (communication to the public generally). Second—and critically—truth is not a defense. The entire purpose of the tort is to recognize that accurate disclosure of genuinely private matters can be actionable when done without justification.

II. Florida: Cape Publications, Inc. v. Hitchner

Florida adopted the Restatement § 652D formulation in Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989). The Florida Supreme Court articulated the elements as: (1) publication; (2) of private facts; (3) that are offensive; and (4) are not of legitimate public concern. Id. at 1377. The case arose from a newspaper's publication of information from a confidential child abuse investigation file in connection with a story about the trial of the child's alleged abusers.

The court reversed summary judgment for the plaintiffs—the parents who had been acquitted—on the ground that the child abuse matter was clearly of legitimate public concern. The opinion is primarily notable for two doctrinal contributions.

First, Cape Publications established that Florida courts will apply the Restatement's four-part test, grounding the private-facts tort in the same analytical framework used in most other jurisdictions.

Second, the court signaled that the newsworthiness defense has enormous scope in Florida. Citing Florida Star v. B.J.F., 491 U.S. 524 (1989)—decided the same term—the court emphasized that when the government places information in the public domain, or when the disclosed information pertains to matters of genuine public concern, the press cannot be held liable for accurate reporting. The newsworthiness inquiry is not a bright-line test but a contextual judgment about whether the public's interest in the disclosed information outweighs the individual's privacy interest.

Florida's Continuing Doctrinal Development

Subsequent Florida decisions have refined the Cape Publications framework. Courts have held that:

• The "private facts" requirement is not satisfied if the information was previously disclosed by the plaintiff, made part of a public court record, or obtained from other public sources;
• Matters concerning public figures receive even less protection from this tort, because their voluntary entry into public life reduces their reasonable expectation of privacy regarding the subjects of their public roles;
• The "highly offensive to a reasonable person" element is objective, not measured by the plaintiff's subjective sensibility.

An important limitation: Florida courts have sometimes applied the Florida Star First Amendment analysis directly, holding that the press cannot be held liable for accurately reporting lawfully obtained, truthful information about matters of public concern. This constitutional overlay can swallow the tort in cases involving media defendants.

III. Alabama: Norris v. Moskin Stores, Inc.

Alabama's foundational privacy case is Norris v. Moskin Stores, Inc., 132 So. 2d 321 (Ala. 1961), though the decision is primarily an intrusion-upon-seclusion case rather than a public-disclosure case. Its importance lies in establishing that Alabama recognizes the invasion of privacy tort in its common-law forms.

The Norris facts involved a creditor's agent who made harassing phone calls to the plaintiff's family members with fabricated stories designed to locate the debtor. The Alabama Supreme Court held that where a jury could find the debt collector's conduct outrageous and humiliating to a person of ordinary sensibilities, a prima facie case for invasion of privacy existed. The court articulated three factors: systematic harassment, humiliating publicity, and whether the conduct bore a reasonable relation to a legitimate debt collection goal.

Although Norris is technically an intrusion case, Alabama courts have cited it as recognizing the full four-category Prosser/Restatement taxonomy of invasion of privacy, including public disclosure of private facts. Subsequent Alabama decisions, including those applying the Restatement § 652B intrusion framework, have confirmed that the public-disclosure category survives as a distinct theory.

Alabama's Public-Disclosure Doctrine

Alabama courts applying the private-facts theory require substantially the same elements as the Restatement: public disclosure (not merely private communication), of genuinely private facts, that would be highly offensive to a reasonable person, and that are not of legitimate public concern.

The state has not generated a Cape Publications-style landmark for the public-disclosure category, and Alabama appellate decisions specifically addressing the tort in its pure public-disclosure form are relatively sparse. Practitioners should expect courts to apply Restatement § 652D directly and to analyze the newsworthiness defense in the same fashion as Florida courts—contextually, with substantial First Amendment gloss.

One Alabama-specific consideration: Alabama recognizes the right of privacy as a protected interest grounded in common law, but does not have a specific constitutional privacy provision equivalent to Article I, § 23 of the Florida Constitution. This matters for cases involving government actors, where Florida plaintiffs can assert both the tort and a state constitutional privacy claim.

IV. The Newsworthiness Defense: Where Most Cases Are Won and Lost

The newsworthiness defense—the requirement that the disclosed facts not be "of legitimate public concern"—is the practical center of gravity in private-facts litigation. In both Alabama and Florida, the defense is construed broadly enough to eliminate most claims involving:

• Matters that were the subject of any governmental proceeding (arrest records, court filings, regulatory proceedings);
• Information about persons who have voluntarily entered public life in the relevant subject area;
• Disclosures about health or safety issues that affect the community;
• Information about wrongdoing, particularly when the defendant's conduct caused the plaintiff to become a subject of public concern.

The critical distinction is between voluntary and involuntary public exposure. A plaintiff who sues a medical facility and thereby makes her treatment the subject of public court records has reduced her privacy expectation in that information. A plaintiff who becomes newsworthy through no fault of her own—a crime victim, a bystander at a disaster—retains a stronger claim that the disclosure was not of legitimate public concern.

The Restatement's comment to § 652D suggests a "morbid and sensational prying" standard for identifying disclosures that cross the line from newsworthiness to actionable privacy violation. Florida courts have applied this concept, finding that gratuitous exposure of genuinely private details that adds nothing to the legitimate public interest in a story can satisfy the "highly offensive" element even when the broader subject matter is newsworthy.

V. Truth as Non-Defense: A Counterintuitive Feature

The most important structural distinction between the private-facts tort and defamation is the irrelevance of truth. A defendant who publishes accurate, verified information about a plaintiff may be held liable for public disclosure of private facts if all elements are met. This creates a peculiar dynamic for media defendants: the truth of the report is not only irrelevant but in some sense the predicate for liability, because a false report is actionable under defamation, and a true report about private facts is actionable under this tort.

This dynamic has significant implications for confidential-record disclosures. Accurate reporting of sealed medical records, confidential juvenile proceedings, private financial information, or intimate personal facts—however accurately obtained—may trigger liability if the facts are genuinely private and not of legitimate public concern. Conversely, if the information was lawfully obtained from a government source and concerns a matter of public interest, Florida Star and its progeny substantially reduce liability exposure for media defendants.

For non-media defendants—employers who disclose medical records, former partners who post intimate images, social media users who expose private communications—the First Amendment overlay is much thinner. Private actors who make disclosures without the media's accountability function bear the private-facts tort framework with less constitutional buffering.

VI. Practice Notes: AL and FL Comparison

Pleading: Draft around the "publicity" element carefully—it is distinct from any third-party communication. The defendant must have disseminated broadly or to persons likely to spread the information.

Category selection: Where the facts permit, plead both intrusion upon seclusion (for wrongful acquisition of the information) and public disclosure (for wrongful dissemination). These are separate torts with different elements; both may be supported by the same underlying conduct.

Intimate image disclosure: Florida's statute, Fla. Stat. § 784.049, separately addresses non-consensual disclosure of sexually intimate images as a criminal and civil matter. The common-law private-facts tort may supplement that statutory claim. Alabama does not have an equivalent statute; practitioners should rely on the common-law framework and potentially the Electronic Communications Privacy Act for federal causes.

Employment context: Employers who disclose employee medical information may face claims under both the common-law tort and the ADA, FMLA, or HIPAA (for covered entities). The statutory claims are typically primary, but the common-law tort may extend to situations the statutes do not cover.

VII. Open Questions and Trends

The rise of data aggregators, facial recognition technology, and AI-generated biometric profiles creates new categories of private fact disclosure that neither the Restatement drafters nor the Cape Publications and Norris courts contemplated. The key doctrinal question is whether an individual's compiled behavioral profile—accurate but assembled without her knowledge—constitutes a "private fact" for purposes of the tort. Courts have begun to address this in the context of data brokers; the analysis will turn on whether the aggregated profile reveals something the individual has not made public, even if each constituent data point is individually accessible.

For Florida practitioners, the intersection of the § 652D framework with the state constitutional privacy right (Article I, § 23) provides an additional avenue in cases involving government actors or quasi-governmental entities. That right has been construed to protect informational privacy as well as physical autonomy, and it may sustain claims where the tort framework would be foreclosed by the newsworthiness defense.

Conclusion

The public-disclosure tort remains a functional vehicle for genuine privacy violations—the disclosure of accurate private information that no legitimate public interest justifies. Its central constraint is the breadth of the newsworthiness defense, which in both Florida and Alabama swallows many claims involving any governmental proceeding or any genuinely public concern. The practitioner's challenge is to identify the cases where the disclosed information is truly private, the defendant is not a media actor functioning in the public interest, and the harm to the plaintiff flows from exposure rather than from falsity.

Talk to Yates Anderson

If you are litigating a matter in this area — or weighing whether to — the working analysis above only goes so far. Request a case evaluation and a Yates Anderson attorney will respond within one business day.

Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.