Indiana Law Review
Volume 54 2021 Number 3

NOTES

THE DISCLOSURE TORT IN INDIANA:
HOW A CONTEMPORARY TWIST COULD REVIVE

A DORMANT REMEDY

ABBY DEMARE*

INTRODUCTION

The precise contours of “privacy” are all but clear.1 Arguably, it delineates
a sphere of life dedicated to the contemplation of intimate, perhaps highly
sensitive, matters. In reality, however, it seems that privacy is a matter of tangible
concern, resolved and understood in relation to physical structures and
dwellings.2 Nonetheless, breaches to intangible spheres and facets of private life
are just as real, and notably, harmful. And perhaps more crucially, the
intangibles—our intimate thoughts or sensitive medical information—store most,
if not all, of our private information.3 

Fortunately, victims of intangible privacy breaches can obtain recovery in a

* J.D. Candidate, 2021, Indiana University Robert H. McKinney School of Law; B.A.

2018, Furman University – Greenville, South Carolina. Thank you to my faculty advisor, Professor

Gerard Magliocca, for his insight and guidance throughout the note-writing process.

1. See generally Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1099-

1123 (2002) (examining different conceptions of privacy); ALAN F. WESTIN, PRIVACY AND

FREEDOM 7 (1967) (arguing that individuals desire privacy to promote autonomy, emotional

release, self-evaluation, and a space for protected communication).

2. See, e.g., U.S. CONST. amend. IV (providing that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated”); Katz v. United States, 389 U.S. 347, 351 (1967) (providing that the Fourth

Amendment protects the private status of “people, not places”); RESTATEMENT (SECOND) OF TORTS

§ 652A (AM. LAW INST. 1977) (proposing four privacy torts, still in effect today). 

3. See, e.g., Nuala O’Connor, Reforming the U.S. Approach to Data Protection and Privacy,

COUNCIL ON FOREIGN REL. (Jan. 30, 2018), https://www.cfr.org/report/reforming-us-approach-data-

protection [https://perma.cc/P68M-WST6] (contending that “[a] more comprehensive legal

framework is needed: one that offers a mix of incentives for better security practices, disclosures,

and individual protections”); cf. Andrew Guthrie Ferguson, The Internet of Things and the Fourth

Amendment of Effects, 104 CAL. L. REV. 805, 854 (2016) (arguing that each of us has a “digital

curtilage” that protects our data and private information, and that like physical curtilage, it could

enjoy Fourth Amendment protection). 



662 INDIANA LAW REVIEW [Vol. 54:661

multitude of ways.4 In fact, the majority of states have enacted privacy-related
statutes, regulations, and many even recognize a robust class of privacy torts,5 one
of which is the tort of public disclosure of private facts.6 This tort covers a unique
harm: injuries resulting from the unauthorized disclosure of fundamentally
private, yet fully true, information.7

Superficially, imposing liability for the dissemination of true information
conflicts with the First Amendment’s free speech clause.8 But two of the
disclosure tort’s elements—“newsworthiness” and “highly offensive”9—address
First Amendment concerns and strike the necessary balance between protecting
free speech and deterring unlawful dissemination of sensitive information.10 At
bottom, the disclosure tort embraces the following principle: in the absence of a
legitimate purpose, the unauthorized access and dissemination of an individual’s
most sensitive information is not only unnecessary, but reprehensible. 

In the state’s seminal disclosure case, Doe v. Methodist Hospital, the Indiana
Supreme Court declined to recognize the tort11—despite decades of support and
recognition from the lower courts. In fact, Indiana remains one of five states that
refuses to fully endorse the tort.12 This Note argues that Indiana must crystallize
the viability of the disclosure tort and, in so doing, adopt a “publicity” element
cognizant of and responsive to contemporary challenges. 

Part I of this Note considers the birth of the disclosure tort by way of
examining its theoretical roots. Part II dissects the disclosure tort’s four elements:
private facts, publicity, highly offensive, and newsworthiness. Part III explores
the viability of the disclosure tort in Indiana by way of examining Doe v.
Methodist Hospital,13 along with pre- and post-Doe case law. After considering
the existence of the disclosure tort pre- and post-Doe, Part IV will argue that
Indiana must revive the disclosure tort and, in so doing, reconceptualize the tort’s
“publicity” element in a way that comports with the text of the Restatement yet

4. See STEPHEN P. MULLIGAN & CHRIS D. LINEBAUGH, CONG. RESEARCH SERV., R45631,

DATA PROTECTION LAW: AN OVERVIEW (2019) (providing an exhaustive review of information

privacy law at the tort, state, and federal levels). 

5. Id. at 36-37. 

6. Hereinafter referred to as the “disclosure tort.” 

7. RESTATEMENT (SECOND) OF TORTS § 652D. 

8. See, e.g., Erwin Chemerinsky, Protecting Truthful Speech: Narrowing the Tort of Public

Disclosure of Private Facts, 11 CHAP. L. REV. 423 (2007); Diane L. Zimmerman, Requiem for a

Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort, 68 CORNELL L. REV. 291, 293

(1983); Jared A. Wilkerson, Battle for the Disclosure Tort, 49 CAL. W. L. REV. 231, 266-67 (2013). 

9. RESTATEMENT (SECOND) OF TORTS § 652D cmt. c-d.

10. See Geoff Dendy, Note, The Newsworthiness Defense to the Public Disclosure Tort, 85

KY. L.J. 147, 161-64 (1996) (contemplating the different newsworthiness tests).

11. Doe v. Methodist Hosp., 690 N.E.2d 681, 682 (Ind. 1997). 

12. See, e.g., Howell v. N.Y. Post Co., 612 N.E.2d 699, 703 (N.Y. 1993); Brunson v. Ranks

Army Store, 73 N.W.2d 803, 806 (Neb. 1955); Doe, 690 N.E.2d at 682; Hall v. Post, 372 S.E.2d

711, 712 (N.C. 1988); Evans v. Sturgill, 430 F. Supp. 1209, 1213 (W.D. Va. 1977).

13. Doe, 690 N.E.2d at 681.



2021] THE DISCLOSURE TORT IN INDIANA 663

retains the spirit of the tort. Lastly, Part IV argues that the common law
framework, as compared to a statutory scheme, is best-equipped to address
disclosure-related harms.

I. THEORETICAL UNDERPINNINGS: THE BIRTH OF THE DISCLOSURE TORT

In “The Right to Privacy,” Samuel Warren and Louis Brandeis argued that
it was time for courts to recognize a “more general right of the individual to be
let alone.”14 Warren and Brandeis identified that without a “right to privacy,”15

the experience of privacy was largely reliant upon fervent hope and good
fortune.16 In essence, Warren and Brandeis called for the protection of intangible
life: “thoughts, sentiments, and emotions.”17 

Both at the time of its publication and in the years that followed, “The Right
to Privacy” generated considerable discussion regarding the extent to which the
legal system recognized privacy threats and resulting harms.18 Largely, however,
courts were reluctant to fully endorse the article’s substantive argument—
recognition of the right to be left alone and a path of recourse for resulting
violations.19 

William Prosser observed that Warren and Brandeis’ proposal was largely
unworkable for courts.20 As a general principle, courts prefer to assess the legality
of a claim when equipped with a rule or standard.21 With this in mind, Prosser
reimagined Warren and Brandeis’ proposal by delineating four, distinct sub-torts:
(1) public disclosure of embarrassing private facts, (2) intrusion upon seclusion
or solitude, (3) depiction of another in a false light, and (4) appropriation of
another’s image for commercial gain.22 While the sub-torts share a home under
the “right to privacy” umbrella, each signifies a different privacy invasion,
thereby addressing related, yet fully unique harms.23 

In 1977, the Restatement (Second) of Torts adopted all four of Prosser’s

14. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 205

(1890).

15. William L. Prosser, Privacy, 48 CAL. L. REV. 383, 384 (1960) (discussing that for Warren

and Brandeis, a right to privacy was “essential to the protection of private individuals against the

outrageous and unjustifiable infliction of mental distress”).

16. Id.

17. See Warren & Brandeis, supra note 14, at 205.

18. Prosser, supra note 15, at 386 (observing that for decades, plaintiffs asserted invasion of

privacy claims, and that the “right of privacy” was recognized “by the overwhelming majority of

the American courts”).

19. Id. at 384-85.

20. Id. 

21. See generally Michael Coenen, Rules Against Rulification, 124 YALE L.J. 644 (2014). 

22. See Prosser, supra note 15, at 389.

23. Id. (noting further that despite their differences, each reinforces the right “to be let

alone”) (quoting THOMAS M. COOLEY, LAW OF TORTS 29 (2d ed. 1888)).



664 INDIANA LAW REVIEW [Vol. 54:661

proposed privacy torts.2 4 Suffice it to say, the very existence and further
development of privacy tort law rests upon Warren and Brandeis’ theoretical
exploration of this so-called “right to privacy” and Prosser’s related
scholarship—which, in many respects, brought “The Right to Privacy” to life.

II. DISSECTING THE DISCLOSURE TORT

A. The Disclosure Tort

The disclosure tort provides a remedy for the unauthorized disclosure of
private information when it reaches, or is sure to reach, the public.25 The
Restatement defines the disclosure tort as follows:

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 of legitimate concern to the public.26

As is customary when asserting tort claims, failure to meet the requisite
threshold for each of the tort’s four elements—publicity, private facts, highly
offensive, and newsworthiness—results in a failure to state a claim.27 The
Restatement’s comments elucidate when a particular element is satisfied;
however, many states have devised their own standards for the tort’s elements.
The following sub-sections dissect the disclosure tort by way of examining each
element through the lens of the Restatement and notable state court
interpretations.

1. Publicity.—Under the Restatement, satisfaction of the “publicity” element
requires a showing that the matter was communicated “to the public at large, or
to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.”28 The Restatement further provides that “it is
not an invasion . . . to communicate a fact concerning the plaintiff’s private life
to a single person or even to a small group of persons.”29 The “public at large”
requirement effectively renders disclosures made to one person, two people, and
generally small groups of people non-actionable.30 Conversely, disclosures made
by a mass media entity generally satisfy the “publicity” threshold with ease.31

24. RESTATEMENT (SECOND) OF TORTS § 652A (AM. LAW INST. 1977). 

25. Id.

26. Id. § 652D. For a more in-depth discussion of the other privacy sub-torts, see Prosser,

supra note 15.

27. See FED. R. CIV. P. 12(b)(6) and state equivalents. 

28. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (further noting that for purposes of the

disclosure tort, “publicity” is not synonymous with “publication”). 

29. Id.

30. Id. 

31. Id. (noting that disclosures made by media platforms presumptively give publicity



2021] THE DISCLOSURE TORT IN INDIANA 665

David Elder, a privacy torts scholar, observes that many courts applying the
Restatement’s conception of publicity do so “in a knee-jerk fashion without
analyzing . . . whether legitimate, or even compelling, reasons of public policy
justify imposition of liability for egregious but limited disclosures.”32 In fact,
many disclosure claims fail precisely because plaintiffs are unable to satisfy the
Restatement’s “publicity” showing.33 A few courts share Elder’s frustration
concerning the Restatement’s version of publicity. For example, in Beaumont v.
Brown, the Michigan Supreme Court extended recognition to disclosures—when
sufficiently private and offensive—when made to a “particular public.”34 For the
court in Beaumont, too many disclosure claims fall prey to a “numbers game.”35

Other courts have similarly rejected a numbers-oriented test for the publicity
element, emphasizing that the facts of a particular case should be awarded greater
weight when assessing whether disclosure of private information will survive
under the tort.36 In Kinsey v. Macur, a California appellate court reasoned that the
extent to which a disclosure is given actionable “publicity” is inextricably tied to
personally curated spheres of privacy, providing that claimants have a “‘right to
define [their own] circle of intimacy.’”37

The Court of Appeals for the District of Columbia Circuit has adopted what
might be the most liberal conception of “publicity” under the tort.38 In McSurely
v. McClellan, the court provided that “proof of disclosure to a very limited
number of people when a special relationship exists between the plaintiff and the
‘public’ to whom the information has been disclosed” may be actionable under
the disclosure tort.3 9 In this particular case, the court found that the plaintiff and

considering their audience is generally the public at large). 

32. DAVID A. ELDER, PRIVACY TORTS § 3:3 (2002 & Supp. 2019) (discussing the publicity

requirement of the disclosure tort). Elder is critical of the Restatement’s conception of “publicity,”

explaining, “[T]his unconscionable, ill-considered and artificial limitation was adopted in the pre-

Internet age. Disclosures to a small number of people can now result in almost immediate

dissemination on social media.” Id. (citation omitted).

33. Id.

34. Beaumont v. Brown, 257 N.W.2d 522, 531 (Mich. 1977) (“An invasion . . . is important

if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the

plaintiff. Such a public might be . . . a particular public such as fellow employees, club members,

church members, family, or neighbors, if the person were not a public figure.”).

35. Id.

36. See Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 377-80 (Colo. 1997) (providing, in

pertinent part, that “there is no threshold number, which constitutes ‘a large number’ of persons”);

see also Karch v. BayBank FSB, 794 A.2d 763, 774 (N.H. 2002) (reasoning that the trier of fact

is in the best position to determine whether a disclosure of private information is sufficiently

public).

37. Kinsey v. Macur, 165 Cal. Rptr. 608, 612 (Ct. App. 1980) (quoting Briscoe v. Reader’s

Digest Ass’n, 483 P.2d 34, 37 (Cal. 1971)).

38. See McSurely v. McClellan, 753 F.2d 88, 112-13 (D.C. Cir. 1985). 

39. Id. at 112. 



666 INDIANA LAW REVIEW [Vol. 54:661

her spouse shared a special relationship.40 The “special relationship” test has also
gained traction in other courts, such as an Iowa federal court41 and a Wisconsin
appellate court.42 Cases involving disclosures of sexually explicit content, such
as images or videos, have also found the “special relationship” test particularly
useful in their analyses of the publicity element.43

Although the principal inquiry under the publicity element is to determine
whether the disclosure of private information was given unwanted publicity, a
corresponding inquiry is the medium by which the information was made
public.44 Communications of private matters orally, by movie or television,45 by
radio broadcast,46 and photographs47 have been recognized under the tort.
Ostensibly, disclosures made online and on various social-media platforms would
also seem to suffice under the tort.48

2. Private Facts.—Under the disclosure tort, the information disclosed must
be both factually true and privately held.4 9 Accordingly, there will be no liability
where a defendant “merely gives further publicity to information about the
plaintiff[’s life] that is already public”50 or where the matter is in plain or public

40. Id. at 112-13.

41. See Hill v. MCI WorldCom Commc’ns, Inc., 141 F. Supp. 2d 1205, 1211-13 (S.D. Iowa

2001). 

42. See Pachowitz v. Ledoux, 666 N.W.2d 88, 95-97 (Wis. Ct. App. 2003). 

43. See Peterson v. Moldofsky, No. 07-2603-EFM, 2009 WL 3126229, at *5 (D. Kan. Sept.

29, 2009) (highlighting the simplicity with which disclosures of sexually explicit content can be

made to, at least in theory, “over a billion people”).

44. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (Am. Law Inst. 1977); see also

Prosser, supra note 15, at 392-98.

45. See, e.g., Tyne ex rel. Tyne v. Time Warner Entm’t Co., 204 F. Supp. 2d 1338, 1341

(M.D. Fla. 2002) (applying Florida law), aff’d, 425 F.3d 1363 (11th Cir. 2005); Daly v. Viacom,

Inc., 238 F. Supp. 2d 1118, 1123-24 (N.D. Cal. 2002) (applying California law).

46. See, e.g., Mau v. Rio Grande Oil, Inc., 28 F. Supp. 845, 845-46 (N.D. Cal. 1939); Wilson

v. Grant, 687 A.2d 1009, 1015 (N.J. Super. Ct. App. Div. 1996).

47. See Daily Times Democrat v. Graham, 162 So. 2d 474, 477 (Ala. 1964); Zieve v.

Hairston, 598 S.E.2d 25, 30 (Ga. Ct. App. 2004).

48. See C. Calhoun Walters, Comment, A Remedy for Online Exposure: Recognizing the

Public-Disclosure Tort in North Carolina, 37 CAMPBELL L. REV. 419, 439 (2015).

49. RESTATEMENT (SECOND) OF TORTS § 652D cmt. b; see also Prosser, supra note 15, at

392-98.

50. RESTATEMENT (SECOND) OF TORT S § 652D cmt. b (discussing that, as a general rule,

there is no liability when a plaintiff exposes him or herself to the public eye and a matter retrieved

from such exposure is given further publicity); see also ELDER, supra note 32, § 3:5 (discussing that

plaintiffs do not enjoy a reasonable expectation of privacy regarding matters properly situated in

the public domain). Elder lists the following as examples of public record information: arrests,

convictions, names and identities, profession, child’s name, ancestry, age, address, phone number,

description of business activities, parental and marital status, deceased status, ownership and value

of registered or recorded property, spouse’s suicide, civil filings and judgments, parent’s status as

gay and HIV positive, and bankruptcy. Id.



2021] THE DISCLOSURE TORT IN INDIANA 667

view.51 Furthermore, there is no liability where the information disclosed is a
matter of public record.52 Conversely, information that is not a matter of public
record, such as income tax returns, enjoys a private status under the tort.53 

By and large, courts encounter little difficulty when differentiating between
private and public information. As a general rule, sexual relations and habits,
financial information, debts, intimate anatomical parts, and gender corrective
surgery are “private facts” under the disclosure tort.5 4 Some courts, however, are
less willing to recognize a matter as sufficiently private when the plaintiff, him
or herself, publicized the matter—either directly or indirectly.55 In such cases,
courts may interpret the plaintiff’s disclosure as a waiver of his or her right to
assert a disclosure claim in the event the matter is disseminated to an even larger
audience.56 The rationale is that once exposed to the public, the plaintiff does not
enjoy the “right to choose the forum in which [the matter] was displayed.”57 Put
differently, the plaintiff had the opportunity not to disclose or to limit the
disclosure; once disclosed, further publication of the content is beyond the scope
of protection. 

Situations in which the plaintiff chooses to disclose otherwise private
information to a select group tend to implicate the degree to which the
information was truly private. Nevertheless, some courts are willing to offer
protection in the event the plaintiff created a clear and identifiable “zone of
privacy,”58 the boundaries of which suffered an unanticipated breach due to the
defendant’s disclosure. To elaborate, a plaintiff’s zone of privacy is not
diminished by virtue of it being shared but is instead redefined and reconstructed
to include this new, personally curated audience.59 Thus, if the defendant
disclosed the information to those clearly situated outside the plaintiff’s zone of
privacy, the information can still enjoy a “private” status.60 

51. ELDER, supra note 32, § 3:5 (discussing the private facts requirement).

52. RESTATEMENT (SECOND) OF TORTS § 652D cmt. b (discussing that the following types

of information are generally public record and thus not private: date of birth, marriage status,

military record, license to practice medicine or law, driver’s license, and pleadings in a lawsuit);

see also Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975) (formally recognizing the public-

records exception). 

53. RESTATEMENT (SECOND) OF TORTS § 652D cmt. b; Prosser, supra note 15, at 392-98.

54. RESTATEMENT (SECOND) OF TORTS § 652D cmt. b; Prosser, supra note 15, at 392-98; see

also ELDER, supra note 32, § 3:5.

55. See ELDER, supra note 32, § 3:5.

56. Id.

57. See Brewer v. Hustler Magazine, Inc., 749 F.2d 527, 530 (9th Cir. 1984).

58. See Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491, 499-500 (Ga. Ct. App. 1994)

(Beasley, J., concurring).

59. Id. at 500. The concurrence further explains, “The fact that plaintiff had brought selected

people into the protected zone of privacy . . . did not necessarily erase the zone’s borders. . . . [T]he

zone reserved was a fairly confined one, bounded by a relatively small expanse of private or

discrete disclosure, as distinct from general public knowledge.” Id.

60. See ELDER, supra note 32, § 3:5.



668 INDIANA LAW REVIEW [Vol. 54:661

Some courts support the proposition that individuals have the right to define
the boundaries of their private lives.61 Under this perspective, plaintiffs can
demonstrate that a particular piece of information enjoyed a “limited privacy”
status by showing that it was only accessible to a select few.62 Here, the
overarching consideration is whether the disclosure in question was made to a
completely unexpected and unauthorized audience.63

3. Highly Offensive.—Upon demonstrating that private information was given
unwanted publicity, the plaintiff must then prove that the matter disclosed was
“highly offensive to the ordinary reasonable man.”64 To this end, courts inquire
into the accepted customs and the social mores of the plaintiff’s community;
however, courts tend to defer to the jury, as fact-finder, to make the final
determination.65 The Restatement underscores that absolute privacy is
unattainable; thus, the overarching goal of the disclosure tort is not to remedy
every privacy disruption suffered by the plaintiff, even if it was the result of an
unauthorized disclosure or seemingly private information.66 Instead, the core
interest of the tort is to provide a remedy for those disclosures which produce
shame or humiliation to the person of ordinary sensibilities.67 

Disclosures of indecent photographs and videos, psychiatric and medical
information, as well as information concerning an individual’s sexual conduct,
orientation, or status as victim of sexual assault are generally deemed “highly
offensive” under the tort.68 Conversely, disclosures of merely embarrassing or
mildly offensive material are generally unlikely to satisfy the “highly offensive”
element, as such disclosures do not “seriously offend [someone] of normal
sensibilities.”69 

4. Newsworthiness.—The fourth and final element of the tort asks whether
the information disclosed was newsworthy. To satisfy the newsworthiness
element, plaintiffs must demonstrate that the information disclosed was beyond
the scope of public concern.70 The fundamental function of the newsworthy
element is to ensure that a defendant’s First Amendment rights are properly
weighed against the plaintiff’s privacy interest so as to prevent a “chilling effect”
on free speech.71 

Under the Restatement, the relative “newsworthiness” of a disclosure is based
largely upon the “mores of the community.”72 Courts following the Restatement

61. Id.

62. Id.

63. Id.

64. RESTATEMENT (SECOND) OF TORTS § 652D cmt. c (Am. Law Inst. 1977).

65. See id.

66. Id.

67. Id.

68. See ELDER, supra note 32, § 3:6 (discussing the highly offensive requirement).

69. Id. 

70. See RESTATEMENT (SECOND) OF TORTS § 652D cmt. d.

71. Id.

72. Id. at cmt. g; see also Virgil v. Time, Inc., 527 F.2d 1122, 1128-30 (9th Cir. 1975)



2021] THE DISCLOSURE TORT IN INDIANA 669

approach tend to impose liability where the disclosure is tantamount to “a morbid
and sensational prying into private lives for its own sake, with which a reasonable
member of the public, with decent standards, would say that he had no
concern.”73 In effect, disclosures of private information may be actionable in one
state but non-actionable in another by virtue of those states maintaining different,
and perhaps conflicting, standards of decency.74 Courts have developed numerous
tests to assess the newsworthiness of a disclosure75: (1) leave it to the press,76 (2)
customs and conventions,77 (3) nexus test,78 (4) status-of-the-plaintiff,79 (5) nature
of the information,80 and (6) California’s balancing approach.81

The “leave it to the press” approach, also known as “defer-to-the-media,”
operates under the presumption that the matter disclosed is one within the realm
of public concern.8 2 For purposes of determining whether the matter is
sufficiently newsworthy, courts following this approach tend to conflate matters
of “public concern” with disclosures of which there might be a “public interest.”83

The “leave it to the press” approach, therefore, is perhaps the most liberal lens
through which to examine the newsworthiness of a disclosure and, accordingly,
renders many disclosures of private information unactionable under the tort.

The “nexus” approach is essentially an extension of the Restatement’s
newsworthiness model. In short, courts following this approach consider whether
there is a nexus between the matter disclosed and a matter of legitimate public
concern.84 In contrast to the “leave it to the press” approach, “public interest”
does not render a matter newsworthy. Instead, there must be an identifiable
relationship between the disclosure and the matters with which the public is
generally—and properly—concerned.85 

For some courts, the newsworthiness element requires an inquiry into the

(discussing, as a matter of first impression, that “newsworthiness” determinations should be

reserved for the jury, as such are in the best position to assess “community mores”); ELDER, supra

note 32, § 3:17 (“some ‘[r]evelations may be so intimate and so unwarranted in view of the victim’s

position as to outrage the community’s notions of decency.’”).

73. RESTATEMENT (SECOND) OF TORTS § 652D cmt. h.

74. See DANIEL J. SOLOVE & PAUL M. SCHWARTZ, INFORMATION PRIVACY LAW 564 (6th ed.

2018).

75. Id.; see also Dendy, supra note 10. 

76. See ELDER, supra note 32, § 3:17 (discussing the newsworthiness element).

77. See Virgil, 527 F.2d at 1129 (applying the “customs and conventions of the community”

approach to determine if the information was newsworthy). 

78. See SOLOVE & SCHWARTZ, supra note 74.

79. See ELDER, supra note 32, § 3:17.

80. Id.

81. Id.

82. See Zimmerman, supra note 8, at 353. 

83. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against

Disclosure, 53 DUKE L.J. 967, 1003 (2003) [hereinafter Solove, The Virtues of Knowing Less].

84. See ELDER, supra note 32, § 3:17.

85. Id.



670 INDIANA LAW REVIEW [Vol. 54:661

“status of the individual.”86 Here, the relative “newsworthiness” of a disclosure
hinges upon whether the plaintiff is a private or public person.87 Moreover, courts
adhering to the “status of the individual” approach presume that when the
plaintiff is a public figure or public official, the information is likely one of public
concern,88 but only insofar as the matter disclosed has no legitimate relationship
to the community at large.89

Rather than focusing on the private or public status of the plaintiff, the
“nature of the information” approach examines the content of the disclosure.90

The fundamental question for proponents of this model is whether the matter
disclosed is one that contributes to “democratic self-governance.”91 If a matter
disclosed fails to facilitate any meaningful political disclosure, it is not of public
concern and, therefore, is disqualified of any “newsworthy” status.92 To illustrate,
the “leave it to the press” approach is conceivably the most permissive
newsworthy model while the “nature of the information” approach is likely the
most stringent.

Under the California approach, courts consider three factors to determine if
a matter disclosed is sufficiently “newsworthy:” (1) social value, (2) depth of the
intrusion, and (3) status of the plaintiff.93 Additionally, the California model
includes a “decency limitation” which mirrors the Restatement model, as it calls
for a “reasonable person” inquiry—whether the reasonable person in the
plaintiff’s community would find a conflict between the community mores and
the content of the disclosure.94

B. Viability of the Disclosure Tort

A majority of states recognize the disclosure tort—either explicitly or
implicitly.95 But despite garnering widespread recognition, the following five

86. Solove, The Virtues of Knowing Less, supra note 83, at 1008.

87. See ELDER, supra note 32, § 3:17.

88. Critics of this approach note that proponents of the “status of the plaintiff” model treat

public figures and public officials the same when, in fact, they are two entirely different categories

of individuals, serving and functioning in the public sphere in very different ways. See Solove, The

Virtues of Knowing Less, supra note 83, at 1009-10.

89. See ELDER, supra note 32, § 3:17.

90. Solove, The Virtues of Knowing Less, supra note 83, at 1010-11. 

91. Id. at 1010.

92. Id.

93. See ELDER, supra note 32, § 3:17.

94. Id.

95. See, e.g., Crippen v. Charter Southland Hosp., Inc., 534 So. 2d 286, 288 (Ala. 1988);

Rutledge v. Phoenix Newspapers, Inc., 715 P.2d 1243, 1246 (Ariz. Ct. App. 1986); McMullen v.

McHughes Law Firm, 454 S.W.3d 200, 209 (Ark. 2015); Floyd v. Koenig, 274 S.W.3d 339, 341

(Ark. Ct. App. 2008); Urbaniak v. Newton, 277 Cal. Rptr. 354, 358-59 (Ct. App. 1991); Robert C.

Ozer, P.C. v. Borquez, 940 P.2d 371, 377 (Colo. 1997); Goodrich v. Waterbury Republican-Am.,

Inc., 448 A.2d 1317, 1328-29 (Conn. 1982); Spence v. Cherian, 135 A.3d 1282, 1287-88 (Del.



2021] THE DISCLOSURE TORT IN INDIANA 671

states have not yet endorsed the tort: New York, Nebraska, North Carolina,
Virginia, and Indiana.96 Although an inquiry into each state’s respective rationale
for rejecting the tort could be illuminating, this Note is centrally concerned with
the reasons for which Indiana has declined to endorse the tort, which is the focus
of the following section.

III. THE DISCLOSURE TORT IN INDIANA

Indiana courts generally examine disclosure claims through the lens of Doe
v. Methodist Hospital, the state’s seminal disclosure case.97 In Doe, former Chief
Justice Randall T. Shepard held that “[t]he facts and the complaint in this
particular case do not persuade us to endorse the sub-tort of disclosure.”98 Yet, at
the time, the tort’s viability was far from an open question.99 In fact, numerous
decisions from the Indiana Court of Appeals reveal that the disclosure tort was
a fully available cause of action in the decades prior to Doe.100 

Super. Ct. 2016); Vassiliades v. Garfinckel’s, Brooks Bros., Miller & Rhoades, Inc., 492 A.2d 580,

587 (D.C. 1985); Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003); Zieve v. Hairston,

598 S.E.2d 25, 30 (Ga. Ct. App. 2004); Wilson v. Freitas, 214 P.3d 1110, 1120 (Haw. Ct. App.

2009); Baker v. Burlington N., Inc., 587 P.2d 829, 832 (Idaho 1978); Miller v. Motorola, Inc., 560

N.E.2d 900, 901 (Ill. App. Ct. 1990); Yoder v. Smith, 112 N.W.2d 862, 864 (Iowa 1962); Werner

v. Kliewer, 710 P.2d 1250, 1256-57 (Kan. 1985); McCall v. Courier-Journal & Louisville Times

Co., 623 S.W.2d 882, 887 (Ky. 1981); Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386, 1390-

91 (La. 1979); Rush v. Maine Sav. Bank, 387 A.2d 1127, 1128 (Me. 1978); Klipa v. Bd. of Educ.,

460 A.2d 601, 607-08 (Md. Ct. Spec. App. 1983); Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d

667, 682 (Mass. 2005); Doe v. Mills, 536 N.W.2d 824, 828 (Mich. Ct. App. 1995); Bodah v.

Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003); Lake v. Wal-Mart Stores, Inc.,

582 N.W.2d 231, 236 (Minn. 1998); Young v. Jackson, 572 So. 2d 378, 382 (Miss. 1990); St.

Anthony’s Med. Ctr. v. H.S.H., 974 S.W.2d 606, 609-10 (Mo. Ct. App. 1998); State v. Eighth

Judicial Dist. Court ex rel. Cty. of Clark, 42 P.3d 233, 240 (Nev. 2002); Karch v. BayBank FSB,

794 A.2d 763, 773-74 (N.H. 2002); Rumbauskas v. Cantor, 649 A.2d 853, 857-58 (N.J. 1994);

Fernandez-Wells v. Beauvais, 983 P.2d 1006, 1008 (N.M. Ct. App. 1999); Killilea v. Sears,

Roebuck & Co., 499 N.E.2d 1291, 1294-95 (Ohio Ct. App. 1985); Eddy v. Brown, 715 P.2d 74,

77-78 (Okla. 1986); Marleau v. Truck Ins. Exch., 37 P.3d 148, 154 (Or. 2001); Burger v. Blair

Med. Assocs., Inc., 964 A.2d 374, 380 (Pa. 2009); 5 R.I. GEN. LAWS ANN. § 5-37.3-4 (West 2020);

McCormick v. England, 494 S.E.2d 431, 437-38 (S.C. Ct. App. 1997); Provencio v. Paradigm

Media, Inc., 44 S.W.3d 677, 683 n.23 (Tex. App. 2001); Judge v. Saltz Plastic Surgery, P.C., 367

P.3d 1006, 1013-14 (Utah 2016); Hearst Corp. v. Hoppe, 580 P.2d 246 (Wash. 1978) (en banc);

Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 85 (W. Va. 1983); Hillman v. Columbia Cty.,

474 N.W.2d 913, 919-20 (Wis. Ct. App. 1991).

96. See supra note 12. 

97. Doe v. Methodist Hosp., 690 N.E.2d 681, 683 (Ind. 1997).

98. Id. at 693.

99. See infra Section III.A. 

100. See, e.g., State ex rel. Mavity v. Tyndall, 66 N.E.2d 755 (Ind. 1946); Patton v. Jacobs,

78 N.E.2d 789 (Ind. App. 1948); Cont’l Optical Co. v. Reed, 86 N.E.2d 306 (Ind. App. 1949); Near



672 INDIANA LAW REVIEW [Vol. 54:661

A. Pre-Doe: Recognition of the Disclosure Tort

The disclosure tort was first recognized in Continental Optical Co. v. Reed,
a 1949 Indiana Court of Appeals decision.101 In brief, Reed argued that
Continental Optical’s unauthorized publication of his photograph—which
captured him working as a lens grinder—constituted an unlawful use of his
“likeness for commercial purposes.”1 0 2 Upon review, the panel found that
“independent of property rights, contracts, reputation and physical integrity, there
is a legal right called the right of privacy, the invasion of which gives rise to a
cause of action.”103 A step further, the panel articulated that this “right of privacy”
included claims for any of the following privacy violations:

[t]he unwarranted appropriation or exploitation of one’s personality, the
publicizing of one’s private affairs with which the public has no
legitimate concern, or the wrongful intrusion into one’s private activities,
in such manner as to outrage or cause mental suffering, shame, or
humiliation to a person of ordinary sensibility.104

This definition—namely, the portion concerning the publication of private
affairs—is the functional equivalent of the language used to define the disclosure
tort under the Restatement.105 Thus, starting with Continental Optical Co., the
“right to privacy” in Indiana encompassed the very essence of the disclosure tort
as found in the Restatement.106 

Continental Optical Co. was the first, but surely not the last time the Indiana
Court of Appeals considered the disclosure tort. In Near East Side Community

E. Side Cmty. Org. v. Hair, 555 N.E.2d 1324 (Ind. Ct. App. 1990); Cullison v. Medley, 570 N.E.2d

27 (Ind. 1991); Nobles v. Cartwright, 659 N.E.2d 1064 (Ind. Ct. App. 1995); Watters v. Dinn, 666

N.E.2d 433 (Ind. Ct. App. 1996); Ellis v. Luxbury Hotels, Inc., 666 N.E.2d 1262 (Ind. Ct. App.

1996). 

101. Cont’l Optical Co., 86 N.E.2d at 308; see also Prosser, supra note 15, at 387 (referring

to Cont’l Optical Co. as a case in which Indiana extended recognition to the invasion of privacy

tort). 

102. Cont’l Optical Co., 86 N.E.2d at 308.

103. Id.; see also Warren & Brandeis, supra note 14 (arguing that a right of privacy should be

recognized as something separate and distinct from other privacy related rights). 

104. Cont’l Optical Co., 86 N.E.2d at 308 (emphasis added) (internal citation and quotation

marks omitted).

105. Cf. REST AT EM ENT (SECOND) OF TORTS § 652D (AM. LAW. INST. 1977) (using

substantially similar language to define the disclosure tort: “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 of legitimate concern to the public.” (emphases added)). 

106. See generally Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer

to Dean Prosser, 39 N.Y.U. L. REV. 962, 963 (1964) (positing that the four essential torts embodied

by the invasion of privacy tort share the same interest in common: protection of individual dignity). 



2021] THE DISCLOSURE TORT IN INDIANA 673

Organization v. Hair, a 1990 decision, the Indiana Court of Appeals considered
another privacy-related claim.107 There, the panel reiterated that “Indiana
recognizes the tort of invasion of privacy”108 and cited the Restatement’s model
with favor.109 Additionally, the panel noted that the tort consists of four different
causes of action, including the “unreasonable publicity given to the other’s
private life.”110 Here, the Indiana Court of Appeals not only affirmed the viability
of all four privacy torts, but specified that claims involving the unauthorized
disclosure of private life were, likewise, actionable.111

Thereafter, the Indiana Court of Appeals continued to contemplate privacy-
related claims, and notably those involving the unauthorized disclosures of
private information.112 Take, for example, the panel’s decision in Nobles v.
Cartwright. In Nobles, the cognizability of the disclosure tort was, quite simply,
a non-issue.113 In fact, the central inquiry in Nobles concerned the substance of
the tort—its “newsworthiness” element.114 To this end, the panel observed that
Indiana courts had yet to adopt a particular test.115 Ultimately, finding no issue
with the tort itself, the panel adopted the “nexus” test to assess the
newsworthiness of the disclosure.116 

In sum, pre-Doe case law is permeated with invasion of privacy claims,
including those involving allegations of unauthorized disclosures of private
information. Between 1949 and 1996, the Indiana Court of Appeals routinely
affirmed the viability of the disclosure tort by way of expressly accounting for its
substance under the general invasion of privacy tort, or by analyzing the
disclosure tort, specifically.117 Thus, the viability of the disclosure tort pre-Doe
was far from an open question. Rather, it was a settled question of law.

B. Doe v. Methodist: Departure from the Disclosure Tort

After decades of recognition, the disclosure tort suffered its unseemly demise
in Doe v. Methodist Hospital. While working as a letter carrier for the U.S. Postal
Service, Doe was rushed to a nearby hospital for a suspected heart attack.118 In the

107. Near E. Side Cmty. Org. v. Hair, 555 N.E.2d 1324 (Ind. Ct. App. 1990).

108. Id. at 1334.

109. See RESTATEMENT (SECOND) OF TORTS § 652D.

110. Near E. Side Cmty. Org., 555 N.E.2d at 1334-35.

111. Id. at 1335.

112. See, e.g., Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991); Watters v. Dinn, 666 N.E.2d

433 (Ind. Ct. App. 1996); Ellis v. Luxbury Hotels, Inc., 666 N.E.2d 1262 (Ind. Ct. App. 1996). 

113. See Nobles v. Cartwright, 659 N.E.2d 1064, 1064 (Ind. Ct. App. 1995).

114. Id. at 1074. 

115. Id. at 1075.

116. Id. at 1077. 

117. See RESTATEMENT (SECOND) OF TORTS § 652D (AM. LAW. INST. 1977).

118. Doe v. Methodist Hosp., 639 N.E.2d 683, 684 (Ind. Ct. App. 1994), vacated, 690 N.E.2d

681 (Ind. 1997).



674 INDIANA LAW REVIEW [Vol. 54:661

ambulance, Doe informed the paramedics that he was HIV positive.119 Previously,
Doe had disclosed this information to a small group of friends, some of whom
were his co-workers.120 

One of Doe’s co-workers, Cameron, called his wife—a nurse at the
hospital—to check on Doe’s condition; during this conversation, Cameron’s wife
disclosed that Doe was HIV positive.1 21 Thereafter, Cameron informed some of
Doe’s co-workers of this newly discovered information, including Duncan.122

Duncan shared this information with two other co-workers, Saunders and Oakes.
Oakes was previously informed about Doe’s HIV status, but Saunders was not.123

Following this unfortunate sequence of events, litigation ensued. Principally,
Doe asserted a disclosure claim against Duncan for disclosing his HIV status to
two of their co-workers.124 The Indiana Court of Appeals affirmed summary
judgment for Duncan, reasoning that—as a matter of law—Duncan did not give
unreasonable publicity to Doe’s HIV status.125 Notably absent from the Indiana
Court of Appeals’ holding was any indication that Doe’s disclosure claim failed
because the tort did not exist in Indiana.1 2 6 Rather, the panel simply found that
Doe did not satisfy the tort’s publicity element.127 

Judge Edward Najam dissented from the panel’s decision.128 Judge Najam
argued that an inquiry into the “publicity” element should be reserved for the
jury, as it is ultimately a question of fact; further, the majority blindly relied upon
the Restatement’s conception of “publicity.”1 2 9 That is, the panel never explored
alternative interpretations of publicity,130 such as the one embraced in Beaumont
v. Brown.131 There, the Michigan Supreme Court adopted the “special
relationship” test, under which plaintiffs may satisfy the “publicity” element upon
showing the existence of a special relationship between the plaintiff and the

119. Id.

120. Id. 

121. Id.

122. Id.

123. Id.

124. Id. Doe also sued Cameron and the hospital for invasion of privacy and for violation of

statutory duties of confidentiality, but these issues were not considered at the appellate level. 

125. Id. at 686. The trial court granted Duncan’s motion for summary judgment. In pertinent

part, Oakes was already aware of Doe’s HIV status. And although Saunders was not aware of this

information, the matter was not given unreasonable “publicity” on account of its disclosure to one,

unauthorized person. 

126. Id.

127. Id. 

128. Id. at 686-87 (Najam, J., dissenting). 

129. Id. at 686 (discussing that while “many jurisdictions require disclosure to the public at

large,” other jurisdictions employ different standards); see also RESTATEMENT (SECOND) OF TORTS

§ 652D cmt. a (AM. LAW. INST. 1977).

130. Doe, 639 N.E.2d at 686. 

131. Beaumont v. Brown, 257 N.W.2d 522, 531 (Mich. 1977).



2021] THE DISCLOSURE TORT IN INDIANA 675

unpermitted recipient(s).132 
Doe then filed a petition for transfer with the Indiana Supreme Court.133 The

Court granted transfer, but ultimately affirmed summary judgment for Doe’s co-
worker, Duncan.134 Chief Justice Shepard authored the Court’s plurality opinion
which, albeit historically rich, operated from a particularly flawed premise: The
disclosure tort was a new, unresolved issue of law.135 Treating it as such, Chief
Justice Shepard studied the reasons to adopt the tort, but found none sufficiently
persuasive.136 

As an initial point, Chief Justice Shepard rightly observed that following the
publication of “The Right to Privacy,”137 state courts were reluctant to recognize
something like a right to privacy.138 Nevertheless, the Restatement (Second) of
Torts adopted the invasion of privacy tort; under the Restatement, the tort
encompassed four distinct sub-torts.139 And thereafter, the majority of states
adopted all four privacy sub-torts.140 As far as Chief Justice Shepard was
concerned, Indiana “never directly confronted disclosure as an actionable
invasion of privacy.”141 But Indiana courts previously confronted and, more
crucially, recognized the disclosure tort.142 So, upon what grounds does the Chief
Justice’s assertion rest?

Examining State ex rel. Mavity v. Tyndall, Chief Justice Shepard observed
that the Indiana Supreme Court “recognized breach of privacy as tortious . . .
[but] did not consider the different forms of invasion that courts have since
delineated.”143 However, two years after Mavity, the Indiana Court of Appeals
considered Continental Optical Co., in which the court curated a definition for
the invasion of privacy tort, noting with particularity that the unauthorized
disclosure of private information—the very substance of the disclosure tort—gave
rise to an actionable claim for invasion of privacy.144 In fact, and conveniently
absent from Chief Justice Shepard’s evaluation, Continental Optical Co. pointed
to Mavity as support for recognizing the tort.1 4 5 Chief Justice Shepard celebrated
Mavity for its precedential value and, in particular, as a basis for supporting the

132. Id. 

133. Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997).

134. Id. at 693.

135. Id. at 685. 

136. Id. at 686-92. 

137. See Warren & Brandeis, supra note 14.

138. See Prosser, supra note 15. 

139. See RESTATEMENT (SECOND) OF TORTS § 652A (AM. LAW. INST. 1977).

140. Prosser, supra note 15, at 386-87.

141. Doe, 690 N.E.2d at 685.

142. See supra Section III.A.

143. Doe, 690 N.E.2d at 685; see also State ex rel. Mavity v. Tyndall, 66 N.E.2d 755, 755

(Ind. 1946).

144. Cont’l Optical Co. v. Reed, 86 N.E.2d 306, 308 (Ind. App. 1949); see RESTATEMENT

(SECOND) OF TORTS § 652D. 

145. Cont’l Optical Co., 86 N.E.2d at 308. 



676 INDIANA LAW REVIEW [Vol. 54:661

invasion of privacy tort in Indiana.146 Nevertheless, the invasion of privacy tort
as articulated by the Indiana Court of Appeals expressly incorporated the
disclosure tort.147 Thus, by the plurality’s own—perhaps inadvertent—admission,
Indiana not only contemplated, but recognized the disclosure tort prior to Doe.

Further, Justice Brent Dickson—who produced a concurring
opinion—vehemently rejected the Chief Justice’s characterization.148 Justice
Dickson observed that Indiana courts had consistently discussed and extended
recognition to disclosure claims, whether asserted as a distinct claim or under the
greater invasion of privacy umbrella.149 In light of this historical backdrop, Justice
Dickson contended that the plurality was “mistaken in its discourse questioning
the cognizability of [the] tort under Indiana law.”150 

Despite concluding that the disclosure tort had no basis in Indiana law, Chief
Justice Shepard entertained public policy support for the tort; namely, the
protection from reputational harm151 and prevention of unneeded emotional
distress.152 Chief Justice Shepard conceded that truthful disclosures can inflict just
as much harm as false ones.153 But still, recognition of something like “truthful
defamation” was untenable due to an apparent conflict with a libel provision
found in the Indiana Bill of Rights.154 In a defamation suit, defendants can escape
civil liability by showing that the information is true.155 For Chief Justice
Shepard, the Indiana Constitution was “not lacking in ambiguity”156 concerning
its support for this defense, further providing that the “truth-in-libel provision of
the 1851 Indiana Constitution commands real caution” when considering
proposals that would effectively impose liability for the disclosure of truthful
information.157

146. In his opinion, the Chief Justice provides a definition of the invasion of privacy tort,

which again, includes the operative language of the disclosure tort: “The unwarranted appropriation

or exploitation of one’s personality, the publicizing of one’s private affairs with which the public

has no legitimate concern, or the wrongful intrusion into one’s private activities, in such a manner

as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary

sensibilit[ies].” Doe, 690 N.E.2d at 685-86 (emphasis added) (quoting Cont’l Optical Co., 86

N.E.2d at 308).

147. See RESTATEMENT (SECOND) OF TORTS § 652D; see also supra Section III.A. 

148. Doe, 690 N.E.2d at 693-95 (Dickson, J., concurring) (agreeing that Doe’s claim was not

actionable but disagreeing that the disclosure tort is not viable in Indiana).

149. Id. at 694.

150. Id. at 693.

151. Id. at 686 (majority opinion).

152. Id. at 692 (finding that emotional injuries were already protected in Indiana under outrage

claims, the Chief Justice could not “discern anything special about disclosure injuries” to induce

support of the tort under Indiana law).

153. Id. at 687. 

154. See IND. CONST. art. 1, § 10.

155. Id.

156. Doe, 690 N.E.2d at 687.

157. Id. at 691.



2021] THE DISCLOSURE TORT IN INDIANA 677

Despite Chief Justice Shepard’s qualms, however, the Indiana Constitution
contains no provision that explicitly or implicitly denounces recognition of the
disclosure tort.158 Justice Dickson helpfully illuminated that, notwithstanding this
truth-in-libel provision, nothing in the Indiana Constitution should be read to
suggest that harms resulting from unauthorized, yet truthful, disclosures are
beyond the scope of legal redress.159 Simply put, “the Indiana Constitution does
not appear to create any impediment to the cognizability of the common law tort
of invasion of privacy by public disclosure of private facts.”160

Interestingly, and unlike the Indiana Court of Appeals panel, Chief Justice
Shepard entertained alternative conceptions of the tort’s publicity element,
including the particular public standard.161 If examined through the Restatement’s
lens, Chief Justice Shepard found that Doe’s claim would fail because one of the
individuals to whom Duncan disclosed Doe’s HIV status was already aware of
this fact, and, as is widely understood, “[t]here is no liability when the defendant
merely gives further publicity to information about the plaintiff that is already
public.”162 Further, Doe would also fail under the particular public standard
because the only remaining recipient of the disclosure, Saunders, was not one
someone with whom Doe shared a “special relationship.”163 To conclude, Chief
Justice Shepard bluntly asserted:

Indiana recognizes a number of the claims described generically as
invasion of privacy. The version of these torts involving disclosure of
truthful but private facts encounters a considerable obstacle in the truth-
in-defense provisions of the Indiana Constitution. The facts and the
complaint in this particular case do not persuade us to endorse the sub-
tort of disclosure.164

At bottom, Chief Justice Shepard’s analysis of pre-Doe case law is, at best,
incomplete, and, at worst, misleading. His contention that the tort was not
previously considered is mistaken,165 as it fails to apprehend that the principal
difference between the invasion of privacy tort and the disclosure tort is one of
form, not substance.166 Further, and to echo Justice Dickson, the plurality opinion
suffers from the failure to consider the extent to which private information enjoys

158. See id. at 694-95 (Dickson, J., concurring) (emphasizing that recognition of the disclosure

tort is not prohibited by the Indiana Constitution).

159. Id.

160. Id. at 695.

161. Id. at 692 (majority opinion) (citing Beaumont v. Brown, 257 N.W.2d 522, 531 (Mich.

1977)).

162. Id. at 693 (quoting RESTATEMENT (SECOND) OF TORTS § 652D cmt. b (AM. LAW. INST.

1977)).

163. Id.

164. Id.

165. See supra Section III.A. 

166. See RESTATEMENT (SECOND) OF TORTS § 652D (revealing how the very substance of the

disclosure tort was embraced under the greater invasion of privacy umbrella).



678 INDIANA LAW REVIEW [Vol. 54:661

a genuinely secure status in our digital era.1 6 7 Lastly, even if plaintiffs encounter
little success establishing a claim under the tort, formal recognition under Indiana
law is still valuable for purposes of “deterrence and accountability.”168

C. Post-Doe: Rejection, Reluctance, and Recognition

Since Doe, Indiana courts have struggled to provide a clear stance regarding
the disclosure tort’s viability. Many post-Doe decisions suggest that the tort is
viable,169 while others are much less clear.170 For instance, in Allstate Insurance
Co. v. Dana Corp., the Indiana Supreme Court noted that “[t]he extent to which
the tort of invasion of privacy is recognized in Indiana is not yet settled.”171 Yet,
in Doe, the court only rejected the disclosure tort, not the invasion of privacy tort
as a whole.172

Several Indiana decisions unequivocally represent that the disclosure tort is
not viable in Indiana.173 In Felsher v. University of Evansville, the court clarified
that it had decided “not to recognize a branch of the [invasion of privacy] tort
involving the public disclosure of private facts.”174 According to Chief Justice
Loretta Rush, Felsher seemingly “closed the door to disclosure claims in
Indiana.”175

Ironically, however, in Walgreen Co. v. Hinchy, the Indiana Court of Appeals
considered the merits of a disclosure claim, and even endorsed the “particular
public” standard for the tort’s publicity element.176 The panel reasoned that “[t]his

167. See THERESA M. PAYTON & THEODORE CLAYPOOLE, PRIVACY IN THE AGE OF BIG DATA:

RECOGNIZING THREATS, DEFENDING YOUR RIGHTS, AND PROTECTING YOUR FAMILY 7-8 (2014);

see also Doe, 690 N.E.2d at 693-95 (Dickson, J., concurring).

168. Doe, 690 N.E.2d at 695.

169. See, e.g., Pohle v. Cheatham, 724 N.E.2d 655 (Ind. Ct. App. 2000); Ledbetter v. Ross,

725 N.E.2d 120 (Ind. Ct. App. 2000); Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958 (Ind. Ct.

App. 2001); Clinic for Women, Inc. v. Brizzi, 814 N.E.2d 1042 (Ind. Ct. App. 2004); H.D. v. BHC

Meadows Hosp. Inc., 884 N.E.2d 849 (Ind. Ct. App. 2008); Vargas v. Shepherd, 903 N.E.2d 1026

(Ind. Ct. App. 2009); J.H. v. St. Vincent Hosp. & Health Care Ctr., Inc., 19 N.E.3d 811 (Ind. Ct.

App. 2014); Walgreen Co. v. Hinchy, 21 N.E.3d 99 (Ind. Ct. App. 2014).

170. See, e.g., Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001); Felsher v. Univ.

of Evansville, 755 N.E.2d 589 (Ind. 2001); Munsell v. Hambright, 776 N.E.2d 1272 (Ind. Ct. App.

2002); Robbins v. Trs. of Ind. Univ., 45 N.E.3d 1 (Ind. Ct. App. 2015); Mataranglo v. Meijer Stores

Ltd. P’ship, 77 N.E.3d 264 (Ind. Ct. App. 2017).

171. Allstate Ins. Co., 759 N.E.2d at 1056-57.

172. Doe, 690 N.E.2d at 693.

173. See, e.g., Felsher, 755 N.E.2d at 593; Meury v. Eagle-Union Cmty. Sch. Corp., 714

N.E.2d 233 (Ind. Ct. App. 1999); Westminster Presbyterian Church v. Cheng, 992 N.E.2d 859 (Ind.

Ct. App. 2013); Farr v. New Life Assocs., P.C., 55 N.E.3d 397 (Ind. Ct. App. 2016).

174. Felsher, 755 N.E.2d at 593.

175. F.B.C. v. MDwise, Inc., 131 N.E.3d 143, 144 (Ind. 2019) (mem.) (Rush, C.J., dissenting).

176. Walgreen Co. v. Hinchy, 21 N.E.3d 99, 112 (Ind. Ct. App. 2014) (discussing that using

the “particular public” conception of publicity for a jury instruction was proper).



2021] THE DISCLOSURE TORT IN INDIANA 679

Court has repeatedly held that the ‘particular public’ standard included in
Beaumont is to be applied in this State as well.”177 Yet in the cases cited to
substantiate this assertion, the Beaumont publicity standard garnered no such
recognition; that is, none formally adopted the “particular public” standard.178

Still, Walgreen Co. suggests that the disclosure tort remains a viable cause of
action in Indiana. 

In 2019, the Indiana Court of Appeals considered a disclosure claim in the
case of F.B.C. v. MDwise.179 There, the plaintiff’s sensitive medical information
was submitted to an online insurance portal, accessible to both the plaintiff and
her husband.180 The portal disclosed that the plaintiff had recently been tested for
several sexually transmitted diseases.181 Citing Felsher and Doe, the panel
dismissed the plaintiff’s claim, reasoning that the disclosure tort was not a viable
cause of action in Indiana.182 Writing for the dissent, Judge L. Mark Bailey
suggested that, in light of the “ubiquity of digital data” and the access it affords
to unknown third parties, Indiana would recognize the tort if presented with the
opportunity.183 As an additional point, Judge Bailey suggested that in the event
the tort is more formally recognized, Indiana should consider adopting the
“particular public”184 conception of the tort’s publicity element.185 

Although the Indiana Supreme Court voted to deny transfer of F.B.C. v.
MDwise, Inc., Chief Justice Rush’s dissenting memorandum186 indicates that the
disclosure tort could experience a new life in the future. Echoing Judge Bailey,
the Chief Justice reasoned that formal recognition of the tort would, at the very
least, deter individuals from disseminating private information without
authorization.187 Chief Justice Rush additionally noted that the ease of access to
information further supports recognition of the tort.188 Nevertheless, if presented

177. Id. (citing Vargas v. Shepherd, 903 N.E.2d 1026, 1031 (Ind. Ct. App. 2009); Munsell v.

Hambright, 776 N.E.2d 1272, 1283 (Ind. Ct. App. 2002)).

178. See Vargas, 903 N.E.2d at 1031. Here, Vargas merely asked the court to adopt the

“particular public” standard. However, the court never explicitly recognized this standard. See also

Munsell, 776 N.E.2d at 1283 (noting that in Doe, the court considered alternative conceptions of

the publicity element, including the “particular public.” But, again, the court never explicitly

endorsed this conception of the tort’s publicity element. Instead, the court stipulates that even under

a “looser standard” such as the particular public, Munsell’s claim would still fail.).

179. F.B.C. v. MDwise, Inc., 122 N.E.3d 834 (Ind. Ct. App.), trans. denied, 131 N.E.3d 143

(Ind. 2019).

180. Id. at 836.

181. Id.

182. Id. at 837.

183. Id. at 839 (Bailey, J., dissenting).

184. See Beaumont v. Brown, 257 N.W.2d 522, 531 (Mich. 1977).

185. F.B.C., 122 N.E.3d at 839.

186. F.B.C. v. MDwise, Inc., 131 N.E.3d 143, 143-45 (Ind. 2019) (mem.) (Rush, C.J.,

dissenting).

187. Id. at 145. 

188. Id.



680 INDIANA LAW REVIEW [Vol. 54:661

with the opportunity to adopt the tort in the future, the Restatement’s model
appears to be the Chief Justice’s top candidate.189 

Peculiarly, in the very same year, a panel for the Indiana Court of Appeals
remanded a case involving the unauthorized disclosure of private medical
information, noting that it would not discuss the merits of the plaintiff’s
disclosure claim, but that she was nonetheless “free” to use the tort—and its
underlying theory—to pursue her claim at the trial level.1 9 0 But most recently, in
Community Health Network, Inc. v. McKenzie, the Indiana Court of Appeals
considered a case involving a medical records coordinator’s unauthorized access
of private patient information.191 Relying on an oversimplified historical analysis,
the panel reasoned that “Community cannot be held vicariously liable for a tort
that has yet to be recognized.”192 To this end, the panel relied upon cases in which
the disclosure tort received harsh treatment,193 but neglected any consideration of
those in which it garnered recognition.194 

IV. REVIVING THE DISCLOSURE TORT IN INDIANA

[T]here is a part of the life of every person who has come to years of
discretion, within which the individuality of that person ought to reign
uncontrolled either by any other individual or by the public collectively.
That there is, or ought to be, some space in human existence thus
entrenched around, and sacred from authoritative intrusion, no one who
professes the smallest regard to human freedom or dignity will call into
question . . . .195

Unlike related causes of action, the disclosure tort appreciates the
ramifications associated with the dissemination of private, yet fundamentally true,
information.196 To echo Warren and Brandeis, it embraces the notion that we have

189. Id. Chief Justice Rush noted that she is not inclined to adopt the particular public

standard, as embraced in Beaumont. 

190. Henry v. Cmty. Healthcare Sys. Cmty. Hosp., 134 N.E.3d 435, 439 n.4 (Ind. Ct. App.

2019). 

191. Cmty. Health Network, Inc. v. McKenzie, 150 N.E.3d 1026, 1030-32 (Ind. Ct. App.

2020). 

192. Id. at 1045.

193. Id. at 1044-45 (citing Doe v. Methodist Hosp., 690 N.E.2d 681, 693 (Ind. 1997); Felsher

v. Univ. of Evansville, 755 N.E.2d 589, 593 (Ind. 2001); F.B.C. v. MDwise, Inc., 122 N.E.3d 834,

836-37 (Ind. Ct. App. 2019)). 

194. See supra Section III.A. 

195. JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY WITH SOME OF THEIR

APPLICATIONS TO SOCIAL PHILOSOPHY 943 (W.J. Ashley ed., Longmans, Green, & Co. 7th ed.

1909) (1848) (emphasis added).

196. Compare RESTATEMENT (SECOND) OF TORTS § 652D (AM. LAW INST. 1977) (delineating

the cause of action for unauthorized disclosures of true information), with id. § 558 (delineating the

cause of action for defamation, which requires—in part—the publication of a false statement). 



2021] THE DISCLOSURE TORT IN INDIANA 681

the right to be left alone.197 But more specifically, that our private information is
worthy of protection. The extent to which such protection exists in Indiana is,
quite simply, unclear. Thus, although wrongful disclosures continue to
ensue—now with greater stealth and sophistication—the path for recovery is slim,
if not entirely unavailable.

If presented with the opportunity, the Indiana Supreme Court should revive
the disclosure tort and crystallize its viability under law. In sum, proper
recognition of the tort would not only deter unauthorized disclosures of private
information, but also promote greater cognizance concerning the methods through
which unauthorized parties gain access and exploit slivers of our private lives.
Critics will likely argue that the disclosure tort undermines our First Amendment
guarantee to free speech. But rest assured, the disclosure tort is not interested in
chilling or regulating all unauthorized disclosures. Working in tandem, the
“newsworthiness” and “highly offensive” elements strike a proper and fully
necessary balance between the protection of speech and privacy. Further, some
might argue that the disclosure tort is incapable of addressing contemporary
challenges. Indeed—but only if the court retains a traditional interpretation of the
Restatement’s publicity element—reconceptualizing this element could give new
life to the disclosure tort, one desperately needed in our digital age. Lastly,
despite statutory reform and corresponding remedies, the common law framework
is best suited for the collection and contemplation of disclosure claims.

A. Striking the Balance

Seemingly, the disclosure tort is an affront to the First Amendment.198 As
sweeping as it may seem, however, certain categories of speech do not enjoy First
Amendment protection.199 These categories are the careful byproduct of a
balancing test, whereby the interests in protecting speech are weighed against a
competing, perhaps equally crucial, interest.200 Moreover, if the disclosure tort is
reprehensible on First Amendment grounds, it is not merely because it regulates

197. Warren & Brandeis, supra note 14, at 205.

198. See Chemerinsky, supra note 8, at 423 (arguing, in part, that “the tort of public disclosure

of private facts is objectionable under the First Amendment”); U.S. CONST. amend. I (providing,

in pertinent part, that “Congress shall make no law . . . abridging the freedom of speech, or of the

press”). 

199. See, e.g., Miller v. California, 413 U.S. 15, 36 (1973) (holding that obscenities do not

enjoy First Amendment protection); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)

(holding that “fighting words” do not enjoy First Amendment protection); New York v. Ferber, 458

U.S. 747, 764 (1982) (holding that child pornography does not enjoy First Amendment protection);

Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam) (holding that “true threats” do not

enjoy First Amendment protection); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam)

(holding that speech that incites imminent lawless action does not enjoy First Amendment

protection). 

200. See Solove, The Virtues of Knowing Less, supra note 83, at 981-82 (providing that “the

balancing approach has largely prevailed”). 



682 INDIANA LAW REVIEW [Vol. 54:661

a particular type of speech.201 But rather, because the competing interest—in this
case, the preservation of privacy—does not warrant regulation. 

Fortunately, these interests are not mutually exclusive. Thus, the more
pertinent question is not whether protection can extend to both interests, but how
to balance them when a conflict arises. As it turns out, the disclosure tort was
constructed with cognizance of such a potentiality. In fact, two elements—highly
offensive and newsworthiness—exist to strike this very balance.

Functioning like a filter, the disclosure tort’s “highly offensive” element
retains only the most egregious disclosures for further consideration.202 In brief,
the “highly offensive” classification attaches to disclosures most likely to offend
our ordinary, commonly shared sensibilities.203 Underlying this assessment is an
interest in preserving a simple grain of decency within our respective
communities.204 But even if “highly offensive,” the inquiry continues; to strike the
balance, courts must then consider the matter’s relative “newsworthiness.”205

Courts utilize different tests to determine whether a disclosure is newsworthy,
and thus unactionable.206 Take, for example, the “logical nexus” test.207 Under this
test, mere “public interest” does not prevail, but rather the central concern is
whether an identifiable relationship “exist[s] between the complaining individual
and the matter of legitimate public interest.”208 If such a nexus exists, then the
matter is likely newsworthy. However, under the “nature of the information” test,
the relative newsworthiness of the information depends upon its contribution—or
lack thereof—to the meaningful exchange of ideas.2 0 9 Both tests are less than
ideal for balancing purposes. The former is disposed to protect unsavory speech
at the expense of privacy, while the latter is driven by a content-heavy
assessment, which is presumptively offensive to the First Amendment.210 

Among the tests available, the “community mores approach” strikes the
proper balance between the protection of speech and privacy interests.211 Under
this approach, the “newsworthiness” of a disclosed matter is based on whether it

201. Id. at 986 (explaining some categories of speech are not protected under the First

Amendment); cf. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975) (recognizing the public

records exception, but notably, declining to hold that the First Amendment prohibits the imposition

of liability for the publication of truthful, yet private, information). 

202. RESTATEMENT (SECOND) OF TORTS § 652D cmt. c (AM. LAW INST. 1977).

203. See supra Section II.A.3. 

204. Id.

205. RESTATEMENT (SECOND) OF TORTS § 652D cmt. d.

206. See supra Section II.A.4.

207. Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980); see also Dendy, supra

note 10, at 162 (discussing the “logical nexus” test). 

208. See Dendy, supra note 10, at 162 (quoting Campbell, 614 F.2d at 397).

209. See ELDER, supra note 32, § 3:17 (discussing the “nature of the information” test). 

210. See Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 102 (1972) (holding that the ordinance

in question was unconstitutional because it authorized a content-based regulation of speech that was

not justified by a substantial government interest). 

211. Virgil v. Time, Inc., 527 F.2d 1122, 1128 (9th Cir. 1975).



2021] THE DISCLOSURE TORT IN INDIANA 683

is a legitimate public interest.212 This assessment is guided by the following
considerations:

In determining what is a matter of legitimate public interest, account
must be taken of the customs and conventions of the community; and in
the last analysis what is proper becomes a matter of the community
mores. The line is to be drawn when the publicity ceases to be the giving
of information to which the public is entitled, and becomes a morbid and
sensational prying into private lives for its own sake, with which a
reasonable member of the public, with decent standards, would say that
he had no concern.213

Principally, the community mores approach defers to members of the
community rather than a detached and disinterested court. Customs and norms,
as they exist and evolve, are eminently instructive, as they reflect our boundaries;
namely, the scope of legitimate public interest, as understood by the members of
our community.214 The community mores approach also emphasizes that access
does not warrant consumption of private information.215 Conflating access with
entitlement results in the “morbid and sensational prying into private lives for
[their] own sake.”216 Quite simply, unbridled curiosity does not justify the
dissemination of a neighbor’s intimate information. Instead, it erodes communal
trust and any sliver of decency left remaining.

In sum, the community mores approach ensures that remedy is reserved for
disclosures of an inherently indecent and intolerable kind.217 Namely, the kind
that would, if granted First Amendment protection, undercut a fundamental
objective of the free speech clause: to encourage the meaningful exchange of
ideas.218 As John Stuart Mill wisely articulated, “the appropriate region of human
liberty . . . [is] doing as we like, . . . without impediment from our fellow-
creatures, so long as what we do does not harm them, even though they should
think our conduct foolish, perverse, or wrong.”219 As applied here, the

212. Id. at 1129. 

213. RESTATEMENT (SECOND) OF TORT S § 652D cmt. h (AM. LAW INST. 1977) (emphasis

added). 

214. Virgil, 527 F.2d at 1130. 

215. Id. at 1129. 

216. RESTATEMENT (SECOND) OF TORTS § 652D cmt. h.

217. Dendy, supra note 10, at 161-62 (reasoning that “[t]he result of a community mores test

combined with judicial scrutiny is a standard, according to the Virgil court, that is respective of

individual’s privacy interests without offending the First Amendment”). 

218. See Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment

Theory Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV. 935, 962 (1968) (arguing that

“speech necessary for an effective and meaningful democratic dialogue by and large does not

require references to the intimate activities of named individuals”). 

219. JOHN STUART MILL, ON LIBERTY 26-27 (2d ed. 1859) (introducing the “harm principle”);

see also Piers Norris Turner, “Harm” and Mill’s Harm Principle, 124 ETHICS 299 (2014)

(summarizing Mill’s harm principle and further noting that notwithstanding its theoretical value,



684 INDIANA LAW REVIEW [Vol. 54:661

dissemination of an individual’s sensitive information, guided by no rhyme,
reason, or legitimate purpose, is not only wrong but inherently harmful. Any
tolerance thereof results in the erosion of our zones of privacy—which exist not
to restrict the freedom exercised by others, but to delineate a sphere within which
we can exercise our freedom to consider and discuss matters of private concern.
Simply, disseminating an individual’s intimate information produces no
foundation upon which to engage in meaningful discourse. “Speech” so lacking
in value should not reap the benefits of First Amendment protection.220

Much like our right to free speech, privacy is worthy of protection; and
indeed, these interests can coexist. Moreover, the interest in preserving the private
status of intimate information is not only reasonable, but desirable—both at an
individual and collective level. With First Amendment fears alleviated, the
Indiana Supreme Court should welcome the revival of the disclosure tort and, in
so doing, reconceptualize the tort’s publicity element.

B. Reconceptualizing Publicity

If the Indiana Supreme Court formally adopts the tort, it would likely retain
the Restatement’s version of the publicity element.221 Under the Restatement, the
publicity element is satisfied when:

the [private] matter is . . . communicat[ed] . . . to the public at large, or
to so many persons that the matter must be regarded as substantially
certain to become one of public knowledge. The difference is not one of
the means of communication . . . . It is one of a communication that
reaches, or is sure to reach, the public.
Thus it is not an invasion of the right of privacy . . . to communicate a
fact concerning the plaintiff’s private life to a single person or even to a
small group of persons.222

Traditionally understood, disclosures that reach only a few people are not
actionable under the Restatement.223 That is, the “public at large” language

Mill’s harm principle is rather limited as to what constitutes a harm, and namely one which

warrants legal intervention); Mark Strasser, Lawrence, Mill, and Same-Sex Relationships: On

Values, Valuing, and the Constitution, 15 S. CAL. INTERDISC. L.J. 285 (2006) (examining Mill’s

harm principle); R. George Wright, A Rationale from J. S. Mill for the Free Speech Clause, 1985

SUP. CT. REV. 149. 

220. Cf. Solove, The Virtues of Knowing Less, supra note 83, at 979-80 (contemplating

whether unauthorized disclosures of private information constitute “speech,” as traditionally

understood). 

221. See F.B.C. v. MDwise, Inc., 131 N.E.3d 143, 145 (Ind. 2019) (mem.) (Rush, C.J.,

dissenting) (demonstrating preference for the Restatement’s version of the publicity element, as

opposed to the particular public model).

222. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (AM. LAW INST. 1977).

223. But see id. § 577 cmt. b (providing that “[i]t is enough that [a defamatory matter] is

communicated to a single individual other than the one defamed” (emphasis added)).



2021] THE DISCLOSURE TORT IN INDIANA 685

generally controls analysis.2 2 4 Paradoxically, however, the Restatement suggests
that even if a private matter is not announced to the public at large, it can achieve
actionable publicity when disseminated “to so many persons” such that “the
matter must be regarded as substantially certain to become one of public
knowledge.”225 Implicitly, this portion of the Restatement legitimizes inquiry into
disclosures that, albeit limited in their initial reach, are likely to spread and reach
an unintended audience. 

Perhaps, therefore, a reconceptualized interpretation of the publicity element
would invite, rather than discourage, inquiry into limited disclosures—
particularly those which occur in the digital arena—as such can compromise the
security of private information, leaving it vulnerable to further attack and
exploitation.

In the digital context, it is well-understood that the manner in which
information—private and otherwise—is stored and shared can reflect the ease
with which it can be assessed, and also the scope of its shareability.226

Superficially, the Restatement rejects inquiry into the manner of information
storage and dissemination.227 But such an interpretation rests upon traditional, and
largely antiquated, notions regarding the management of private information. And
if not that, then pure lack of depth; in other words, at the time the tort was
introduced, technological advancements of contemporary caliber were not within
the realm of consideration. 

To contextualize this issue, consider the following phenomenon—which is
hardly enlightening. Today, the suspected and unsuspected enjoy unregulated
access to our private information, the result of which is increased shareability of
our data to unknown parties.228 This is largely—if not solely—because of the
manner in which information is stored and shared.229 Put simply, rather than using
a physical hard-drive to secure private information, users—and companies that

224. Id. § 652D cmt. a; see also supra Section II.A.1. 

225. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a.

226. See generally WORLD ECON. FORUM, UNLOCKING THE VALUE OF PERSONAL DATA: FROM

COLLECTION TO USAGE (2013), http://www3.weforum.org/docs/WEF_IT_UnlockingValue

PersonalData_CollectionUsage_Report_2013.pdf [https://perma.cc/4KKN-P4RM]; see also Shaun

B. Spencer, The Surveillance Society and the Third-Party Privacy Problem, 65 S.C. L. REV. 373

(2013) (discussing the shareability of information stored in a digital server). 

227. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (providing that “[t]he difference is not

one of the means of communication . . . . It is one of a communication that reaches, or is sure to

reach, the public.” (emphasis added)). 

228. See generally Spencer, supra note 226; Omer Tene, Privacy: The New Generations, 1

INT’L DATA PRIVACY L. 15 (2011) (discussing the increased usage of digital devices and connection

to digital networks); Edith Ramirez, Chairwoman, Fed. Trade Comm’n, Opening Remarks at FTC

PrivacyCon (Jan. 12, 2017), https://www.ftc.gov/public-statements/2017/01/opening-remarks-ftc-

chairwoman-edith-ramirez-privacycon [https://perma.cc/9NWW-4XSU].

229. Spencer, supra note 226, at 398-400 (discussing how slivers of our personal

lives—whether in whole or part—are being uploaded to digital servers, such as a cloud). 



686 INDIANA LAW REVIEW [Vol. 54:661

acquire our private information—utilize a cloud to store personal data.230 To be
clear, using a cloud—or analogous methods—for storage purposes is not
inherently problematic. But the accessibility, and resulting shareability of the
data, is.231 Once a user or another party—authorized or not—makes the initial,
digital disclosure, “sharing becomes the default. . . . The end result of all of this
cloud-based sharing is that we are uploading substantial portions of our lives to
third parties.”232

In a nutshell, this is the “third party privacy problem.”233 Frankly, however,
this is only one of several examples of how private information can reach an
entirely unintended audience by way of an initial, limited disclosure.234 With that
in mind, for some, the surest way to protect private information is, quite frankly,
not to share it with anyone; or alternatively, only to share it within a controlled,
highly secure environment. But as it turns out, a heightened sense of control
actually encourages individuals to share more of their sensitive information.235

Social media platforms vest control in their users; the user decides when to make
the initial publication and with whom it will be shared.236 Consequently, users
find greater comfort in sharing private information—but only insofar as they
retain control over this initial publication.2 3 7 This sense of control, however, does
not extend to accessibility nor shareability of the information once released.238 So,
while users have control over the initial publication of their private information,
in all reality, they possess very little—if any at all—over the extent to which it
can be accessed and subsequently shared.239 

We cannot turn back the clocks and restore old habits as it relates to the
management of our private information. And indeed, several judges recognize the

230. Id. (noting that examples include tax records, financial information, personal

communications, personal thoughts, intimate photographs, and more).

231. Id. at 400.

232. Id. (citations omitted).

233. See id. at 374 (explaining that this problem arises “when the information becomes

available beyond the subject and his or her confidants”). 

234. See generally Jay P. Kesan & Carol M. Hayes, Liability for Data Injuries, 2019 U. ILL.

L. REV. 295 (discussing the various ways in which unauthorized parties can obtain access to our

private information and calling for a duty to secure data within the digital context). 

235. See generally Laura Brandimarte et al., Misplaced Confidences: Privacy and the Control

Paradox, 4 SOC. PSYCHOL. & PERSONALITY SCI. 340 (2012).

236. See id. (discussing how web-based platforms vest users with control over the management

and initial publication of their information).

237. Id. at 344-45 (finding that the “strong feeling of control” over information publication

may increase the satisfaction in posting it). 

238. Id. at 346 (finding that “[t]he paradoxical policy implication of these findings” is that

Web 2.0 applications, by giving greater freedom and power to reveal and publish personal

information, may lower the concerns that people have “regarding the actual accessibility and

usability of information”).

239. Id.



2021] THE DISCLOSURE TORT IN INDIANA 687

precarious state in which our private information is situated.240 Thus, the court’s
unwillingness to consider the merits of limited, digital disclosures is not due to
a lack of awareness—at least entirely. Instead, the more likely culprit is how it
decides to interpret the Restatement’s text—specifically, the publicity element.
As a whole, courts tend to assess the merits of a disclosure claim through the lens
of the “public at large” analysis,241 when in fact, the Restatement invites further
inquiry; namely, when the private matter is situated in a compromised state, such
that it is “substantially certain to become [something] of public knowledge.”242

As applied to the digital context, the manner in which the private matter was
initially disclosed—or perhaps stored—can inform whether it is “sure to reach[]
the public.”243 Accordingly, a reconceptualized understanding of the
Restatement’s publicity element actually invites the court to consider limited,
digital disclosures, as such—depending upon the facts of the particular
case244—can surely reach a larger, unauthorized audience. 

To be clear, this is not a call to increase the breadth of liability for
unauthorized disclosures. Rather, the call of this Note is two-fold. First, the
disclosure tort must be treated as a viable cause of action under Indiana law.
Second, upon formal recognition of the tort, the court should reconsider how the
publicity element is generally understood and applied. To this end, the court
should remain open to considering limited disclosures, but primarily those which
manifest within the digital arena. In short, an inquiry into the manner through
which private information was initially disclosed can, depending upon the facts
of the particular case, reveal whether the matter is “substantially certain to
become [something] of public knowledge.”245 The benefit of a reconceptualized
publicity element is in its capacity to adapt to contemporary innovation and the
attendant challenges—such as those arising in the digital realm. Ultimately, the
disclosure tort is rendered forceless only insofar as antiquated concepts remain
the lens through which we assess contemporary problems.

240. Doe v. Methodist Hosp., 690 N.E.2d 681, 695 (Ind. 1997) (Dickson, J., concurring)

(emphasizing that “our ever-increasing population and the growing technological opportunities

[invite more] invasive scrutiny into others’ lives”); F.B.C. v. MDwise, Inc., 131 N.E.3d 143, 145

(Ind. 2019) (mem.) (Rush, C.J., dissenting) (reasoning that formal recognition of the tort would,

at the very least, deter Hoosiers from accessing and disseminating private information without

permission); F.B.C. v. MDwise, Inc., 122 N.E.3d 834, 839 (Ind. Ct. App. 2019) (Bailey, J.,

dissenting) (emphasizing the importance of the disclosure tort in light of the “ubiquity of digital

data”).

241. See supra Section II.A.1.

242. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (AM. LAW INST. 1977).

243. Id.

244. Doe, 690 N.E.2d at 686 (Najam, J., dissenting) (arguing that the inquiry of the publicity

element is fact-sensitive, and as such, should be reserved for the jury). 

245. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a.



688 INDIANA LAW REVIEW [Vol. 54:661

C. Deficiencies in a Statutory Scheme

Perhaps restoring and revising the disclosure tort is superfluous in light of
recent and forthcoming privacy-related legislation. Like other states, Indiana
offers protection for a multitude of privacy harms under statute.246 However, the
disclosure tort covers a unique harm, and notably one unaccounted for by all
other forms of recourse. Moreover, disclosure claims are diverse and constantly
evolving. Due to its inherent flexibility, the common law framework, as
compared to a statutory scheme, is best-suited to collect disclosure claims and
supply related remedies. 

Statutory remedies are necessary but not sufficient. As briefly mentioned,
existing forms of recourse fall short in addressing the harms attendant to the
wrongful disclosure of private information. Take, for example, the HIPAA
Security rule.247 Akin to the disclosure tort, HIPAA covers the unauthorized
disclosures of true, yet fundamentally private information.248 Nevertheless,
HIPAA does provide a private cause of action for victims of privacy breaches.249

Consequently, the unfortunate byproduct is that sometimes, victims of
unauthorized disclosures of sensitive medical information250 “obtain no relief no
matter how severe the HIPAA violation.”251 If duly recognized, however, victims
could sue under the disclosure tort and recover for injuries related to the breach
of their sensitive medical information.252 But without this option, a simple
technicality prevents victims of legitimate disclosure harms from obtaining a
well-deserved recovery.

Indiana recently passed legislation that holds disseminators of “revenge porn”
civilly and criminally liable.253 At its core, the statute signifies that Indiana does,
in fact, detest unauthorized disclosures of intimate information.254 However, it is

246. See, e.g., IND. CODE § 32-36-1-1 (West 2020) (Indiana Right of Publicity Act); id. § 34-

46-4-1 (Shield Law); id. § 34-7-7-1 (Anti-SLAPP Statute); id. § 4-1-10 (SSN Disclosure); id. § 24-

4-14 (Data Disposal law); id. § 4-1-11 (Breach Notification); id. § 24-5-24 (Consumer Report

Security Freeze law); id. § 24-4.9-1 (Disclosure of Security Breach); id. § 24-4-14-1 (Persons

Holding Consumer’s Personal Information).

247. 45 C.F.R. §§ 160.300-552 (2020). 

248. Id.

249. Id. 

250. See What Is Considered Protected Health Information Under HIPAA?, HIPAA J. (Apr.

2, 2018), https://www.hipaajournal.com/what-is-considered-protected-health-information-under-

hipaa/ [https://perma.cc/6W2J-SQW8] (delineating the different types of “protected health

information”).

251. See SHARONA HOFFMAN, ELECTRONIC HEALTH RECORDS AND MEDICAL BIG DATA: LAW

AND POLICY 76 (Cambridge Univ. Press 2016). 

252. Id.; see also Henry v. Cmty. Healthcare Sys. Cmty. Hosp., 134 N.E.3d 435, 438 (Ind. Ct.

App. 2019) (discussing that other courts use the HIPAA standard of care when assessing tort claims

involving a breach of the duty of confidentiality owed by medical professionals).

253. IND. CODE § 35-45-4-8 (West 2020).

254. The private information covered an “intimate image,” which includes “a photograph,



2021] THE DISCLOSURE TORT IN INDIANA 689

likely that plaintiffs encounter difficulty in establishing liability when a third-
party dissemination is involved.255 In short, plaintiffs can only assert claims
against third parties if the individual knew or should have known that the
individual depicted did not consent to the dissemination of the content; and
seemingly, the burden is on the plaintiff to establish knowledge.256 Undoubtedly,
the revenge porn statute represents a pivotal step toward greater protection of
privacy rights and enjoyment thereof. However, the third-party privacy problem
appears to dawdle beneath the surface,257 complicating recovery efforts, perhaps
even for the most deserving victims. 

In all, disclosure claims are wide-ranging, quite often complex, and
increasingly digital in nature. Accordingly, the legal framework within which
plaintiffs assert disclosure claims must be flexible. That is, it must be durable
enough to withstand societal change, ensuing challenges, and our digital reality.
The disclosure tort, and common law framework, specifically, are well-suited for
such a task. Each element of the tort addresses a specific consideration, but
textually, each is crafted with a healthy level of generality. This welcomes diverse
fact-sets, which allows courts to consider lurking threats to personal and
communal privacy. And as courts delve deeper in the merits of disclosure claims,
it can reveal noteworthy patterns regarding the manner in which private
information is commonly exploited, and correspondingly, who appears most
vulnerable to such exploitations. In so doing, courts can play a larger role in
exposing the most cunning, perhaps even sophisticated, threats to individual
privacy. But only once exposed can we properly identify those who seek to
undermine our experience and expectation of privacy.

digital image, or video: (1) that depicts: (A) sexual intercourse; (B) other sexual conduct; or (C)

exhibition of the uncovered buttocks, genitals, or female breast; of an individual; and (2) taken,

captured, or recorded by: (A) an individual depicted in the photograph, digital image, or video and

given or transmitted directly.” IND. CODE § 35-45-4-8(c). Suffice it to say, the disclosure of

intimate photographs and videos is an egregious violation of privacy. Nevertheless, one’s privacy

can suffer from other—fully legitimate—forms of invasion. See supra Section II.A.1-4 for

examples; see also Dan Carden, ‘Revenge Porn’ Victims Gain Ability to Sue Intimate Image

Distributors for Civil Damages, NORTHWEST IND. TIMES (Apr. 20, 2019), https://www.nwitimes.

com/news/local/govt-and-politics/revenge-porn-victims-gain-ability-to-sue-intimate-image-

distributors/article_97832dd9-2acc-5442-8465-b3ab6bf15382.html [https://perma.cc/3TSZ-CL5C].

255. The law is relatively new, so at this time, the relative success of third-party revenge porn

claims is largely unknown.

256. IND. CODE § 35-45-4-8(d); see also Brandon Smith, Bills Penalizing Revenge Porn

Become Law, IND. PUB. MEDIA, (May 3, 2019) https://indianapublicmedia.org/news/bills-

penalizing-revenge-porn-become-law.php [https://perma.cc/LXF9-MG8X] (quoting Indiana

Senator Aaron Freeman, “If you’re surfing the web and you find an image that you, then, repost,

that is not covered in this bill and that is not a crime.”).

257. See generally Spencer, supra note 226. 



690 INDIANA LAW REVIEW [Vol. 54:661

CONCLUSION

Indiana’s treatment of the disclosure tort has been varied and vexing.258

Nevertheless, it is not too late for the courts to formally adopt the tort. In fact, this
Note calls for a simple revival. To this end, the Restatement’s model remains a
worthy candidate, but only if reconceptualized to comport with our highly
digitized reality. Admittedly, privacy—whether considered conceptually or
experientially—differs greatly from times of Warren and Brandeis.259 But the
harms resulting from invasions to personal privacy have all but withered. Thus,
the disclosure tort deserves recognition—and perhaps now more than ever.

258. See supra Sections III.A-C. 

259. See Warren & Brandeis, supra note 14. Warren and Brandeis published their article in

1890.