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Eugene Volokh

Privacy Lawsuit Over Netflix's Our Father Fertility Fraud Documentary Can Go Forward

From Doe v. Netflix, Inc., decided yesterday by Chief Judge Tanya Walton Pratt (S.D. Ind.):

Individuals hoping to one day have children, but who for whatever reasons could not naturally conceive them, entrusted fertility specialist Dr. Donald Cline with that task.. Unbeknown to anyone, Dr. Cline inseminated many of his female patients with his own semen, ultimately, fathering approximately ninety-four (94) children (the "Secret Children"). Dr. Cline's secret was not discovered until 2015 after some took at-home DNA tests through an online testing service. It was not until 2019 that the Plaintiffs made the same discovery after submitting their DNA samples to another online testing service. The Plaintiffs held this information in close confidence. Only, "[c]ertain of Plaintiff's biological half siblings were able to see [their] identit[ies] through the DNA website[s]. This information was kept secured to a limited number of persons, namely, certain of the biological half siblings, through passwords and other means."…

Some of the Secret Children were rightly eager for answers and wanted to expose Dr. Cline's fraud. They reported him to local news outlets, government agencies, and the like. Local news outlets investigated and reported on the story. Thereafter, national news outlets reported on Dr. Cline's fertility fraud. This created a media frenzy surrounding Dr. Cline's conduct. In 2020, the Defendants contacted some of the Secret Children, including Jacoba Ballard ("Ballard"). Defendants offered them "the opportunity to discuss being on camera for [a] documentary and to submit photos."

However, some of the Secret Children, including the Plaintiffs, expressed concerns with being included in the documentary. The "Defendants made clear to the [ ] Secret Children that no Secret Child would be identified in the documentary without his or her explicit consent." In April 2021, the Defendants sent a written statement to Doe and Roe, which read in part: "I know that some of you were more comfortable than others being involved…. You will not be identified (unless you've already given us explicit permission to do so…." (the 'Non-Identification Pledge')."

The three Plaintiffs communicated to Defendants that they did not have their permission to disclose their names in the documentary.

Approximately a year later, in April 2022, the Defendants shared a trailer of the documentary to millions on their social media accounts. The social media posts embedded links to segments of the documentary. The Plaintiffs' names were displayed, and they were identified as Secret Children. In May 2022, millions of people, including at least 250,000 Indiana residents were able to view "Our Father" on Netflix's streaming platform. The documentary depicts Ballard uncovering the truth of her biological parentage, the identities of her previously unknown siblings, the extent of Dr. Cline's fertility fraud, and Dr. Cline's subsequent conviction. At one point during "Our Father", Ballard is seen reviewing her DNA results and scrolling through the names of her half-siblings. It is at this moment that the Plaintiffs' names appear on the screen: "Coe's name appeared on screen for less than 1 second … and Doe's and Roe's names appeared on screen for approximately 9 seconds…."…

The Plaintiffs were astonished that the Defendants broke its pledge and even more perplexed because the Defendants blurred the "names and photographs of numerous Secret Children in the documentary." Plaintiffs were offended by the false and misleading written statement—The Non-Identification Pledge—communicated to them by Defendants and disclosure of their names in Our Father.

Plaintiff sued for, among other things, disclosure of private facts, and the court held that this claim could go forward:

In 2022, the Indiana Supreme Court, in McKenzie, dispelled over two decades of judicial uncertainty and confirmed the "viability of a tort claim for invasion of privacy based on public disclosure of private facts." A defendant violates this privacy law when they disclose information: (1) that is private in nature; (2) to the public; (3) that would be highly offensive to a reasonable person; and (4) that is not of legitimate public concern. Here, the Defendants do not contest that the disclosure was made to the public nor that the disclosure would not be highly offensive to a reasonable person. They do however argue that Plaintiffs' privacy claim fails because the disclosed information was not private in nature and was of legitimate public concern.

{The rule stated in this section gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable man. "The protection afforded to the plaintiff's interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens." While courts may inquire into the accepted customs and the social mores of the Plaintiffs' community, courts tend to defer to the jury, as factfinder, to make the final determination.}

The Court disagrees with the Defendants on both points and finds that Plaintiffs have alleged a viable disclosure of private facts claim against the Defendants.

[1.] The Private Fact Element

Defendants argue the Plaintiffs' identities were not privately held because it was voluntarily shared on the online testing services' websites with complete strangers, i.e., namely the other Secret Children[.] Plaintiffs argue their identities were privately held because it was shared with a select and authorized group of people….

[T]he right of privacy may be waived on behalf of one class [of people] and retained as against another class. [For instance,] the fact [a plaintiff] disclosed his AIDS diagnosis to "his family, friends, and support group did not, as a matter of law, means he waived his privacy right to permit public disclosure to all classes of individuals." (noting that this number is relatively small in relation to the television viewing public in the Macon area.")….

Plaintiffs allege their identities were "kept secured to a limited number of persons, namely, certain of the biological half siblings, through passwords and other means." Although the other Secret Children had access to Plaintiffs' identities and the 23andMe Privacy Policy advised Plaintiffs that "third parties may use your Personal Information differently than we do under," the Plaintiffs must enjoy the right to define the boundaries of their private lives…. Plaintiffs' identities were disclosed to a specific group of people, namely individuals sharing Plaintiffs' ancestry…. Plaintiffs' identities and status as Secret Children were known to a relatively small group of people. The Court is satisfied that the disclosure in question was made to a specific and authorized audience, namely the other Secret Children….

[2.] The Newsworthiness Element…

The First Amendment affords a privilege which protects disclosure of private facts that are "newsworthy," that is, of legitimate concern to the public…. "Once a matter is found to be within the sphere of public interest, otherwise private facts about a person may also be considered of legitimate public interest if those particular facts are sufficiently related to the matter that is of legitimate public concern." This applies "even when the information relates to a person who has neither sought nor consented to the publicity, but nevertheless has become a person about whom there is public interest because of his or her involvement in an occurrence or event that is of legitimate public concern." Generally, the disclosed information must be closely related to a matter that was "newsworthy" at the time of the disclosure. If the appropriate nexus exists between the information and an already newsworthy story, "the fact is also of legitimate public interest, no matter how sensitive or how private." … "[W]hen determining what is a matter of legitimate public concern, "account must be taken of the customs and conventions of the community." Ultimately, the proper inquiry is whether "a reasonable member of the public…would say that he had no concern" with the information disclosed."

Here, it is plausible that disclosing Plaintiffs' identities was not closely related to Dr. Cline's fertility fraud. Arguably, the Plaintiffs were asked to reveal their identities in Our Father because the underlying story about Dr. Cline's widespread fertility fraud was newsworthy. The newsworthy story was the general topic of fertility fraud. The Plaintiffs' identities were not, however, substantially relevant and directly related to the newsworthy story, nor a matter of public record, but, instead, were purely private matters. Arguably, the only substantially relevant and directly related information was the extent of Dr. Cline's fertility fraud, i.e., specifically, how many women were unknowingly inseminated with Dr. Cline's semen and the resulting number of Secret Children he fathered. While Plaintiffs' status as Secret Children may have been closely related to the general topic of fertility fraud, their names were not….

None of the cases relied upon by the Defendants have precedential value and, in any event, they are all distinguishable. See Anonsen v. Donahue (Tex. Ct. App. 1993); Bonome v. Kaysen (Mass. Super. Ct. 2004). In Anonsen, the defendant indirectly revealed the identities of her husband and daughter when discussing pregnancies resulting from incest or rape, while in Bonome the defendant indirectly revealed the identity of her boyfriend when discussing her troubles with vaginal pain and its effects on her relationship in her memoir. Plaintiffs allege the Defendants disclosed a private fact to the public at large which has caused them humiliation and embarrassment, and the disclosure was not of legitimate public concern. While the Court recognizes that an individual is free to share their personal story and history, it must not be at someone else's expense, especially when the disclosed information is not of legitimate public concern.

This disclosure tort serves as a valuable source of deterrence and accountability for our ever-increasing population and the growing technological opportunities for invasion into others' lives, the compilation of private data, and the disclosure of purely personal matters. Having weighed the parties' interests, Plaintiffs' claims are not barred by … the First Amendment …. Viewing the allegations in Plaintiffs' Complaints in the light most favorable to the Plaintiffs, their claim for disclosure of private facts is plausible on its face….


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