Would the following constitute either "publication of private facts or copyright infringement?"

Question

X sent an email to about 20 people with a statement about me that was false, (and arguably defamatory). The email claimed that I should not be one of them (I'm paraphrasing), because I was not a graduate of an Ivy League School, when in actual fact, I am a graduate of such a school. X also asked people specifically not to show the email to Tom Au.

Y reported this to me. But Y was afraid to show me the email on the threat of being sued by X for publication of private facts. (This tort can be "aggravated" by sending information through email.) Y also feared that X had a "copyright" on the email.

Did Y have a reasonable fear of being sued for "publication of private facts" by X, given 1) that the alleged "facts" were about me and not about X, and 2) "Tom Au is not an Ivy League graduate" would not be offensive to a reasonable person, and 3) the email had been circulated to 20 people, basically, all of X's and my mutual acquaintances. except me and 4) Y initially planned to show the email only to me?

Would Y violate X's copyright by 1) sending me the email or 2) showing me a hard copy?

Answer 1

The resource you linked to says that publication of private fact requires the information be:

• so personal and intimate that its disclosure would offend a reasonable person, even if the information is wholly true;
• not generally known to the public;
• not newsworthy; and
• widely communicated, keeping in mind that publication through e-mail could qualify as such.

If X had privately told Y (and only Y) that X had some rare embarrassing medical issue, and Y disseminated that knowledge freely to other people, there could be a legitimate tort case there. However, the actual case here is significantly different in several respects:

• The information "X thinks Tom Au is not a Ivy League graduate" may be embarrassing for X, but it is not like to qualify as so profoundly intimate that its disclosure would reasonably cause automatic offense.

• The information "X thinks Tom Au is not a Ivy League graduate" was not privately held by X: instead, X freely chose to email that information to a group of twenty people. I'm a not lawyer, but that certainly sounds like it could disqualify the information as "private".

• Y did not "widely communicate" the information; it was only to one person (you), which is, numerically speaking, narrowest possible kind of communication possible.

Any one of these points is sufficient to eliminate the possibility of a "publication of private facts" tort against Y, since all of the above criteria must hold to admit the possibility of the tort.

As for copyright: X deliberately gave Y a copy of the email when X sent it electronically. Y is free to use that copy however Y pleases, per the first sale doctrine: when you receive a copy of the work in a way authorized by the copyright holder, copyright law does not limit your ability to use that one copy. You are not allowed to make copies, produce derivative works, or publicly display your copy of the work, but generally all other physical uses of the work are permitted. Showing the work privately to another person does not violate copyright. Privately printing out a copy of the work may violate copyright, but the fair use defense would likely be so overwhelmingly strong that X would not reasonably pursue the suit.

Answer 2

I could sue you for "publication of private facts" about me, not about someone else.

So assuming that all the facts are as described, the only "private fact" that X could sue about are the fact that X told the untruth about you. But since X deliberately emailed this fact (him telling the untruth) to twenty people, I very much doubt this would be a private fact.