Michael S. Virgil, AKA Mike Virgil v. Time, Inc., a New York Corporation

This suit was brought in California state courts by appellee, Virgil, complaining of a violation of his right of privacy. It was removed to federal court by appellant, Time, Incorporated, on grounds of diversity. This interlocutory appeal, taken pursuant to 28 U.S.C. § 1292 (b), is from an order of the district court denying the motion of appellant for a summary judgment.

The facts are stated by the district court in its memorandum decision as follows:

Respecting the applicable state law, the district court stated:

The district court concluded that of these four separate torts the one alleged by plaintiff was that of public disclosure of embarrassing private facts. We agree.

The most recent definition of this tort and discussion of its elements is that to be found in The American Law Institute Restatement (Second) of Torts (Tentative Draft No. 21, 1975). Section 652D gives a new name to the tort, “Publicity Given to Private Life.” The black letter reads:

With respect to “publicity” comment b reads in part:

With respect to “private life,” comment c reads in part:

It is argued that by voluntary disclosure of the facts to Kirkpatrick, knowing that he proposed to write…