March 22, 2007

California Supreme Court OKs Invasion of Privacy Claim Against Academic Journal Author

Holland & Knight Newsletter
Shelley G. Hurwitz

The subject of a scholarly article about childhood abuse has a valid invasion of privacy claim against a researcher who allegedly used false pretenses to gain intimate details about her, the California Supreme Court has ruled. At the same time, the justices took pains to distinguish that lawsuit from a claim that a journalist did not reveal his or her motive in securing an interview, which the court suggested would not survive.

In Taus v. Loftus, et al., plaintiff Nicole Taus claims that the author of an article in the Skeptical Inquirer, a magazine published by the Committee for the Scientific Investigation of Claims of the Paranormal, misrepresented her identity to Taus’ foster mother and learned private details about Taus’ childhood. Taus filed a complaint against the article’s authors and the journal’s publisher seeking recovery for negligent infliction of emotional distress, invasion of privacy, fraud and defamation.

The complicated history of the case began in May 1997, when a different scientific journal published an essay containing details of an anonymous 1984 interview with Taus, referring to her as “Jane Doe.” In that earlier interview, Taus disclosed alleged physical and sexual abuse by her birth mother and reported the spontaneous return of unrecalled memories during an interview 11 years later.

Taus provided that researcher, with whom she had a friendly and trusting relationship, permission to use the interviews for educational purposes. The researcher published an article and gave lectures about “repressed memory syndrome,” a controversial disorder in which adults recall details of traumatic events that they claim to have forgotten for periods of time.

In 2002, the defendant in this action, Elizabeth Loftus, published a two-part article in the Skeptical Inquirer, which scrutinized the methods used by the researcher in the 1997 essay. Loftus was able to trace Jane Doe’s real identity and obtained interviews of several of Taus’ family members. During those interviews, Taus’ foster mother revealed that Taus was extremely distressed when the woman came to live with her, that Taus began to behave in self-destructive ways after viewing videotapes of her original interview with the first researcher, and that she was promiscuous and used drugs. The Loftus article did not reveal Taus’ identity.

Taus, who is now in military service, alleges that Loftus obtained the interview of her foster mother by misrepresenting that she was an associate of the author of the 1997 article, and that the purpose of the interview was to help Taus. Taus’ foster mother stated that she agreed to the interview because she knew that Taus trusted the first researcher, and because the foster mother wanted to help Taus.

The defendants filed a motion to strike pursuant to California’s Strategic Lawsuits Against Public Participation (SLAPP) statute. While dismissing all other causes of action, the California Supreme Court ruled that Taus could proceed with her invasion of privacy claim. The court analogized the stepmother’s and Taus’ description of the events leading up to the disclosures to a third party’s wiretap of a phone conversation in order to gain access to private information that someone chooses to share with one other person. In both instances, the court held, the plaintiff has a reasonable expectation of privacy that may be violated when a defendant engages in unforeseen, wrongful conduct.

The court made clear that Taus will have no claim if Loftus, in fact, did not misrepresent her relationship to the first researcher. But the court also ruled that a jury can determine that Taus reasonably expected that an investigator would not obtain access to personal information about her from a relative or friend by falsely posing as an associate of another mental health professional. The court also found that the “special and unusual considerations” presented by this case could permit the jury to find that Loftus engaged in conduct that was “highly offensive” and sufficient to support a claim for invasion of privacy.

In an apparent effort to narrow the ruling, the court explained that the facts Taus alleged – misrepresenting oneself as an associate of someone in a confidential relationship of the plaintiff – is significantly different from a claim that a news reporter or investigator has shaded or withheld information regarding his or her motives when interviewing a potential news source. The court suggested that in the latter situation, no claim would lie.

The court also rejected the plaintiff’s claim that the defendants’ collection of information from court files constituted an invasion of her privacy. It held that Taus failed to present sufficient evidence that the defendants improperly obtained access to confidential court records, finding that statements by a private investigator that might indicate that he somehow got access to and reviewed confidential records was not enough.

Likewise, the court held that Loftus’ statements implying that Taus was not fit for military duty could not support a defamation claim. The statements were made during a mental health conference and, therefore, were within the common-interest privilege between Loftus, a psychology professor and author, and the audience.

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