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December 20, 2014

COA: Invasion of privacy requires an intentional public disclosure of private facts

In Jane Doe v. Henry Ford Health System, Nos. 317973, 317975, the Michigan Court of Appeals held that in an invasion of privacy action a plaintiff must show that the defendant intended to publicly disclose private facts.  Because, here, plaintiff did not allege that Henry Ford had intended its transcription service provider to change Henry Ford's server configurations to allow private patient information to be searchable on the web, plaintiff failed to state a claim for private invasion.
 
Jane Doe was a patient at Henry Ford Health System. Henry Ford’s transcription service provider changed a configuration on Henry Ford’s server, which resulted in many patients’ private information becoming publicly searchable on the Internet. Jane Doe was one of those patients. In addition to her name and doctor visit information, her diagnosis of “Cervical dysplasia secondary to Human Papillomavirus (HPV)”—a sexually-transmitted disease—was made accessible to the public.
 
Jane Doe brought claims against Henry Ford and its contractors for invasion of privacy, negligence, and breach of contract. The trial court certified a class of 159 similarly situated plaintiffs and denied defendants’ motions for summary disposition. Defendants applied for leave to appeal and the Court of Appeals granted leave. 
 
On appeal, Doe argued that negligence was a sufficient degree of fault to establish an invasion of privacy. At the time, no case had explicitly decided that issue. The Court of Appeals found “it notable that the public disclosure of private facts has been discussed by the Michigan Supreme Court as an intentional tort.” Doe did not present the court with any Michigan case that proceeded on the basis of negligent disclosure. The Court of Appeals thus held that invasion of privacy by public disclosure of private facts requires that the defendant intentionally disclose private facts. Because the plaintiff class had not alleged intentional disclosure, their claim for invasion of privacy failed.
 
The plaintiffs’ claims for negligence and breach of contract also failed because they could not show any actual damages from the disclosure.
 
The Court of Appeals then remanded the case for an order granting defendants’ motion for summary disposition. The Court also reversed the grant of class certification because Doe had no viable claim and could not, therefore, serve as the class representative.

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