High court rejects privacy claim over HIV disclosure

INDIANA–In late December the Indiana Supreme Court unanimously held that an HIV-positive postal worker could not sue a co-worker for invasion of privacy after she revealed his HIV status to other co- workers.

Although voting unanimously to dismiss the claim, no majority of justices agreed on the reasoning for the dismissal. Two justices in the plurality decision argued that the privacy tort of “public disclosure of private facts” is not recognized in the state.

The case arose after a letter carrier, identified in court documents as “John Doe,” sued co-workers who spread a rumor that he was HIV positive. Logan Cameron, one of the co-workers, heard the information from his wife, who was an employee of the hospital that treated Doe. Cameron repeated the rumor to some of Doe’s other co- workers.

Writing for himself and Justice Myra Selby, Chief Justice Randall Shepard described the invasion of privacy tort in general as a “‘lite’ version of trespass, outrage or defamation — promising the same great take with only half the facts.”

Shepard traced the origin of the tort back to an 1890 law review article by Samuel Warren and Louis Brandeis and concluded that the purpose of the disclosure tort was already served by the existing torts of libel and outrage.

“[W]e do not discern anything special about disclosure injuries,” Shepard wrote. “Perhaps Victorian sensibilities once provided a sound basis of distinction, but our more open and tolerant society has largely outgrown such a justification. In our ‘been there, done that’ age of talk shows, tabloids, and twelve-step programs, public disclosures of private facts are far less likely to cause shock, offense, or emotional distress than at the time Warren and Brandeis wrote their famous article.”

Two other justices found that the disclosure privacy tort is a legitimate claim in the state, but the postal worker had not shown that co-workers had spread the rumor to the public. (Doe v. Methodist Hospital; Defense Counsel: Mark Small, Indianapolis)