## Facts

- Conilyn Judge underwent elective cosmetic surgery (abdominoplasty and breast augmentation) performed by Dr. Renato Saltz in 2006.
- Before surgery, Judge signed consent forms permitting her to be photographed or televised before, during, and after the procedures for “medical, scientific or educational purposes,” conditioned on her identity not being revealed by the pictures.
- Judge later participated in a television news segment about cosmetic surgery and choosing a surgeon, discussing her surgery and satisfaction with the results.
- During the broadcast, the segment displayed Judge’s before-and-after images showing her nude torso and thighs with black bars over her breasts and pubic area; her face was not shown.
- The segment identified the images as Judge’s photographs, and Saltz’s office provided the images to the reporter upon request.
- Judge sued Saltz asserting, among other claims, publication of private facts and intrusion upon seclusion; the trial court granted summary judgment to Saltz on all claims.
- The court of appeals reversed; the Utah Supreme Court granted review limited to elements of publication of private facts, summary judgment on that claim, and summary judgment on intrusion upon seclusion.

## Issues

1. Whether Utah’s publication-of-private-facts tort requires the plaintiff to prove the publicized matter is not of legitimate concern to the public, as stated in Restatement (Second) of Torts § 652D.
2. Whether genuine disputes of material fact precluded summary judgment on whether broadcasting Judge’s partially redacted nude photographs involved a matter of legitimate public concern and was highly offensive to a reasonable person.
3. Whether disputes about the scope and meaning of Judge’s consent forms precluded summary judgment on intrusion upon seclusion.

## Decision

- The Utah Supreme Court adopted Restatement (Second) of Torts § 652D, requiring a publication-of-private-facts plaintiff to prove the matter publicized is not of legitimate concern to the public.
- The Court held the “not of legitimate concern” requirement is part of the plaintiff’s prima facie case, not an affirmative defense.
- The Court affirmed reversal of summary judgment on publication of private facts because a factfinder could conclude the broadcast of Judge’s nude images was not of legitimate public concern and could be highly offensive to a reasonable person.
- The Court affirmed reversal of summary judgment on intrusion upon seclusion because reasonable factfinders could differ on whether the consent forms covered disclosure to a television news program and whether the identity-protection condition was satisfied.
- The case was remanded for further proceedings.

## Legal Principles

- Publication of private facts in Utah follows Restatement (Second) of Torts § 652D: liability may exist where (a) the publicity would be highly offensive to a reasonable person and (b) the matter publicized is not of legitimate concern to the public.
- The plaintiff bears the burden to prove lack of legitimate public concern as an element of the claim.
- “Legitimate public concern” requires judicial evaluation of the connection between the disclosed private facts and the public interest served; media choice to publish is not dispositive.
- The legitimate-public-concern inquiry involves balancing the public’s interest in the information against the individual’s privacy interest; sensational curiosity is insufficient.
- Consent for photography/televising limited to “medical, scientific or educational purposes,” with a condition that identity not be revealed, may not cover broader disclosure; when meaning and scope are reasonably disputed, the issue is for the factfinder.

## Conclusion

Utah recognized Restatement § 652D’s legitimate-public-concern requirement as an element of publication of private facts and held that disputed facts about newsworthiness, offensiveness, and the scope of medical-image consent barred summary judgment over the televised display of a patient’s nude before-and-after photographs.


Judge v. Saltz Plastic Surgery, P.C., 367 P.3d 1006 (Utah 2016)