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Robert C. Ozer6/23/1997
o one's private life. We therefore affirm the court of appeals' recognition of this tort claim.
IV.
The final issue before us is whether the court of appeals correctly held that the jury was properly instructed on Borquez' invasion of privacy tort claim based on unreasonable publicity given to one's private life. As discussed in section III above, this tort claim requires public disclosure of private facts. Public disclosure connotes publicity, and the term "publicity" is distinct from the term "publication." See Restatement (Second) of Torts § 652D cmt. a (1976). The term "publicity" requires communication to the public in general or to a large number of persons rather than to just one individual or a few. See Brown, 632 S.W.2d at 509-10; Porten, 134 Cal. Rptr. at 841. In contrast, the term "publication," as it is applied in defamation claims, "is a word of art, which includes any communication by the defendant to a third person." Restatement (Second) of Torts § 652D cmt. a (1976).
In the current case, the trial court instructed the jury regarding the public disclosure requirement of Borquez' claim for invasion of privacy as follows:
A statement is "published" when it is communicated orally to and is understood by some person other than the plaintiff. Instruction No. 7. The trial court thus instructed the jury that the public disclosure requirement was met if Ozer's disclosure was simply made to "some other person" rather than to a large number of persons or the general public. The effect of this instruction was to permit the jury to render a verdict in favor of Borquez if it found that Ozer disclosed to any single individual the fact of Borquez' homosexuality and exposure to AIDS. However, the public disclosure requirement renders Ozer liable for Borquez' invasion of privacy claim only if Ozer disclosed Borquez' situation to a large number of persons or the general public. Because the trial court instructed the jury regarding the term "publication" rather than "publicity," and because the terms "publication" and "publicity" are not interchangeable, we hold that the trial court's instruction was erroneous. We therefore reverse the court of appeals' holding on this issue.
V.
In summary, we hold that the court of appeals erroneously relied on the lawful activities statute in affirming the jury verdict; we therefore reverse the court of appeals on this issue. Additionally, we hold that the court of appeals properly recognized in Colorado a tort claim for invasion of privacy in the nature of unreasonable publicity given to one's private life. In order to prevail on such a tort claim, we hold that the following requirements must be met: (1) the fact or facts disclosed must be private in nature; (2) the disclosure must be made to the public; (3) the disclosure must be one which would be highly offensive to a reasonable person; (4) the fact or facts disclosed cannot be of legitimate concern to the public; and (5) the defendant acted with reckless disregard of the private nature of the fact or facts disclosed. However, we conclude that in the current case, the trial court erroneously instructed the jury on the public disclosure requirement of this tort claim; we therefore reverse the court of appeals as to this issue. Accordingly, we affirm in part and reverse in part, and remand to the court of appeals with directions to return the case to the trial court for a new trial.
JUSTICE HOBBS and JUSTICE BENDER do not participate.
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