McCall v. Oroville Mercury Co.

Opinion

PUGLIA, P. J.

Plaintiff appeals from the judgment of dismissal after the trial court sustained without leave to amend the demurrer of defendant Oroville Mercury Company, Inc., to his third amended complaint. The complaint alleged invasion of privacy, infliction of emotional distress, conspiracy and other causes of action arising out of the publication in defendant’s newspaper of plaintiff’s criminal record. The demurrer was premised on the ground that the offending publication was constitutionally privileged. Plaintiff maintains, however, that there is no privilege because the defendant received the published information in violation of Penal Code section 11143. For present purposes we shall assume that a violation of Penal Code section 11143 will vitiate a privilege otherwise to publish information so obtained. The issue on appeal, therefore, is whether section 11143 applies to members of the news media. We hold that it does not.

[807]

The defendant Oroville Mercury Company, Inc., is a California corporation. It is the publisher of a newspaper known as the Oroville Mercury Register. In May 1980, the Mercury Register published an article relating plaintiff’s criminal record. Plaintiff alleges the information published was not part of the public record nor in the public domain; rather it was obtained from his criminal history record maintained by the state Department of Justice (see Pen. Code, § 11105, subd. (a)) and as such was “unlawfully obtained.” Plaintiff does not deny the accuracy of the information but alleges that since the reported events occurred he has been an exemplary and respected member of the community and has been elected to and is now serving in public office. Plaintiff alleges the publication of his criminal record, which he had kept secret from his friends and the public, exposed him to ridicule and contempt and caused him to lose an election in which he was a candidate for higher public office.

The right to keep information private often clashes with the First Amendment right to disseminate information to the public. Sensitive to this conflict and the privacy tort’s potential encroachment on the freedoms of speech and the press, decisional law recognizes a broad privilege cloaking the truthful publication of newsworthy matters. (See, e.g.,