367 P.3d 1006
Utah2016Background
- Conilyn Judge underwent cosmetic surgery with Saltz Plastic Surgery; she signed pre-surgery consent forms that permitted photographing/televising for "medical, scientific or educational purposes, provided my identity is not revealed by the pictures."
- Fox News produced a news story about plastic surgery risks/benefits; Saltz invited Judge to participate and Fox interviewed her at Saltz’s office.
- After the interview, Saltz’s office manager emailed unredacted nude pre- and post-op clinical photos of Judge to a Fox reporter; Fox used redacted (black-barred) photos in the broadcast and on its website.
- Judge sued Saltz (and Fox, later settled) asserting five claims including publication of private facts and intrusion upon seclusion; the district court granted summary judgment for Saltz on all claims.
- The Utah Court of Appeals reversed summary judgment on all claims; the Utah Supreme Court granted certiorari on (1) whether to adopt Restatement §652D(b)’s "legitimate public concern" element for publication of private facts and (2) whether disputed factual issues about the consent forms precluded summary judgment on intrusion on seclusion.
- The Supreme Court adopted the Restatement element and affirmed the court of appeals: disputed issues of material fact precluded summary judgment on both publication of private facts and intrusion on seclusion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to adopt Restatement (Second) of Torts §652D(b) requiring the matter publicized not be of legitimate public concern | Judge: publication of her surgical photos was not of legitimate public concern | Saltz: Judge’s voluntary TV appearance made the photos legitimately newsworthy | Court adopted §652D(b); newsworthiness is a required element and may be decided by court or jury depending on facts |
| Whether disputed facts precluded summary judgment on publication of private facts | Judge: her interview did not consent to public disclosure of nude clinical photos; their use may have been gratuitous/overly intrusive | Saltz: Judge’s participation and discussion of results created legitimate public interest in seeing her surgical outcome | Reasonable minds could differ on newsworthiness; summary judgment inappropriate because factual dispute exists on legitimate public concern |
| Whether the consent forms unambiguously authorized release of the photos to media | Judge: forms did not authorize release to media; she never consented to airing nude photos | Saltz: consent language (photographed/televised for medical/scientific/educational purposes) necessarily authorized release to third parties and media | Forms are ambiguous as to whether they authorized external release, scope of "educational purposes," and meaning of "identity is not revealed by the pictures," so intent is a question of fact precluding summary judgment |
| Meaning of the clause "provided my identity is not revealed by the pictures" | Judge: clause forbids providing identifying labels with the photos | Saltz: clause prevents identification only if the pictures themselves reveal the identity; providing a name alongside photos is permitted | Court rejected Saltz’s extreme reading as unreasonable and found the clause ambiguous; factual inquiry required (concurrence would interpret clause as forbidding identifying labels and resolve as matter of law) |
Key Cases Cited
- Shattuck-Owen v. Snowbird Corp., 16 P.3d 555 (Utah 2000) (sets elements for publication of private facts)
- Watkins v. Ford, 304 P.3d 841 (Utah 2013) (standard of review on certiorari from court of appeals)
- Shulman v. Group W Prods., Inc., 955 P.2d 469 (Cal. 1998) (newsworthiness and logical nexus test for private facts/public concern)
- Toffoloni v. LFP Publ’g Grp., LLC, 572 F.3d 1201 (11th Cir. 2009) (nude photos unrelated to newsworthy event not of legitimate public interest)
- Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980) (requirement of logical nexus between individual and public interest)
- Winstead v. Sweeney, 517 N.W.2d 874 (Mich. Ct. App. 1994) (summary judgment appropriate when newsworthiness is clear as a matter of law)
- WebBank v. Am. Gen. Annuity Serv. Corp., 54 P.3d 1139 (Utah 2002) (ambiguity standard for contract interpretation)