concurring in result.
I agree with the plurality’s conclusion that, applying Restatement of Torts (Second) § 652D (1977), and construing the facts favorable to Doe, summary judgment was appropriate against Doe’s claim for invasion of privacy for the disclosure of private facts, due to the failure to show the requisite “publicity.” However, I believe that the plurality opinion is mistaken in its discourse questioning the cognizability of this tort under Indiana law. I base this disagreement upon four grounds: (1) the issue was not raised by the parties; (2) the tort of public disclosure of private facts is clearly established in Indiana jurisprudence; (3) the provisions of the Indiana Constitution do not undermine, but rather support, the right to a remedy for this form of invasion of privacy; and (4) our common law recognizing this tort reflects sound public policy.
With its discussion regarding the general cognizability of an action for public disclosure of private facts, the plurality ventures into an issue not presented by the parties. The defendant asserts on appeal and transfer *694only that there was insufficient “publicity” in the present ease to constitute the invasion of privacy disclosure subtort. She does not question whether the tort is cognizable in Indiana. To the contrary, she expressly acknowledges that it is. Brief of Appellee at 11; Appellee’s Brief in Opposition to Petition to Transfer at 8. It would seem preferable for this Court to address the issue only if raised and briefed by the parties.
Portraying it as an unresolved, new issue of law, the plurality casts the question as whether the tort of public disclosure of private facts “may form the basis of a civil action in Indiana,” op. at 682, and asserts that the plaintiff “would have us impose upon Hoosiers a legal duty to refrain from publicly disclosing the private affairs of others.” Op. at 686. I disagree with this characterization. For almost half a century, Indiana courts have clearly recognized the common law tort of invasion of privacy, including the unwarranted public disclosure of private matters.
In 1949, the Court of Appeals approved the following definition of the tort of invasion of privacy:
The unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibility.
Continental Optical Co. v. Reed, 119 Ind. App. 648, 648, 86 N.E.2d 306, 308 (1949), trans. denied.
In Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991), this Court stated, “The tort of invasion of privacy encompasses four separate forms; viz, appropriation, intrusion, public disclosure of private facts, and false light in the public eye.” Id. at 31 (emphasis supplied). A claim of invasion of privacy for public disclosure of private facts was recently permitted to proceed to trial, reversing a summary judgment, in Watters v. Dinn, 633 N.E.2d 280 (Ind.Ct.App.1994), trans. denied, wherein the court stated:
Based upon our review of prior Indiana decisions and other authorities, three essential elements of invasion of privacy by public disclosure of private facts emerge: (1) information is divulged to one who had no legitimate interest in the information; (2) in a manner that was coercive and oppressive; and (3) which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities.
Id. at 290.
Numerous other decisions have acknowledged the availability of the public disclosure tort. See, e.g., Ellis v. Luxbury Hotels, Inc., 666 N.E.2d 1262, 1267 (Ind.Ct.App.1996), trans. pending; Terrell v. Rowsey, 647 N.E.2d 662, 667 (Ind.Ct.App.1995), trans. denied; Near East Side Community Org. v. Hair, 555 N.E.2d 1324, 1334-35 (Ind.Ct.App.1990). The availability of an action for this tort was also recognized in Indiana Nat’l Bank v. Chapman, 482 N.E.2d 474, 479 (Ind.Ct.App.1985), but the court found the evidence wanting, stating, “To reiterate, the Bank’s communication was in answer to a legitimate investigation by law enforcement and was not a ‘publicizing of one’s private affairs with which the public has no legitimate concern_” Id. (citation omitted). Similarly, in Short v. Haywood Printing Co., Inc., 667 N.E.2d 209 (Ind.Ct.App.1996), trans. denied, the court recognized that a plaintiff could prevail in proving the elements of disclosure of private information as an invasion of privacy, but found that the plaintiff failed to assert facts showing that any private information was divulged. Id. at 213-214. The public disclosure tort was extensively analyzed, particularly as to its “legitimate public interest element,” in Nobles v. Cartwright, 659 N.E.2d 1064, 1074-77 (Ind.Ct.App.1995), which unequivocally declared, “Indiana recognizes the tort of public disclosure of private facts.” Id. at 1073.
The tort of invasion of privacy by the public disclosure of private facts is clearly established in Indiana jurisprudence. I believe that it is a mistake to view the existence of this tort as a new question of law for this Court.
I also disagree with the plurality’s conclusion that the Indiana Constitution may present a considerable obstacle to the tort of *695public disclosure of truthful, private facts. To the contrary, our constitution provides a strong basis for continuing to recognize this tort.
As noted by the plurality, a primary harm that can result from a public disclosure of private facts is an injury to a person’s reputation. The Indiana Constitution provides express recognition of an individual’s interest in reputation and accords it specific protection. Bals v. Verduzco, 600 N.E.2d 1353, 1355 (Ind.1992). It expresses distinct protection for personal reputation: “[Ejvery person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.” Ind. Const. art. 1, § 12 (emphasis added).17 Furthermore, the provision protecting the “right to speak, write, or print, freely, on any subject whatever” is expressly qualified by the limitation “but for the abuse of that right, every person shall be responsible.” Ind. Const. art. 1, § 9. While the framers were concerned that the defense of truth be permitted in prosecutions for libel, e.g., defamatory falsehoods, it does not follow that they would have intended to prohibit accountability for harm resulting from the unwarranted public disclosure of private facts, albeit truthful disclosures.
Suggesting that Collins v. Day, 644 N.E.2d 72 (Ind.1994), applies, the plurality does not discern any relevant differences between emotional injuries resulting from public disclosures of private facts and those arising from other sources. However, this analysis fails to include consideration of the injury to one’s reputation interest which accompanies the public disclosure tort. This harm to reputation component provides the inherent difference between the two classes of emotional injuries.
Contrary to the implication presented by the plurality, the Indiana Constitution does not appear to create any impediment to the eognizability of the common law tort of invasion of privacy by public disclosure of private facts.
I read the plurality opinion as inviting retreat from the common law recognition of the tort of invasion of privacy, particularly as to the public disclosure of private facts. As noted above, the availability of this theory of tort liability has been repeatedly acknowledged in numerous Indiana cases for almost fifty years. With our ever-increasing population and the growing technological opportunities for invasive scrutiny into others’ lives, the compilation of private data, and the disclosure of purely personal matters, this common law tort grows in importance as a valuable source of deterrence and accountability.
Noting the prevalence of talk shows and tabloids, the plurality opines that in today’s society, public disclosures of private facts are less likely to cause shock, offense, or emotional distress than in previous times. Despite the ebb and flow of cultural sensibilities, however, it seems unwise to base Indiana’s common law jurisprudence on the common denominator of tabloid and talk show sensationalism and the related absence of traditional respect for privacy and reputation that often characterize these phenomena. The mere fact that some small segments of society might choose to publicly disclose intimate personal facts regarding themselves or others does not establish that this conduct is necessarily reasonable, appropriate, and generally expected behavior. Such concerns, in my view, do not justify the abrogation of the tort of public disclosure of private facts.
In the present case, the Court of Appeals noted that Indiana has long recognized the tort of invasion of privacy, including the unwarranted publicizing of another’s private affairs, and it noted that this case presented a new question only as to what constitutes the element of “publicity” for this tort. It determined that the facts of this ease did not establish “publicity.” This likewise appears to be the actual holding of the plurality opinion of this Court. I believe that transfer should have been denied or the decision of Court of Appeals summarily affirmed.
SULLIVAN, J., concurs.. This language is almost the same as that used in its predecessor, Article 1, Section 11 of the Indiana Constitution of 1816 ("[E]very person, for an injury done him, in his lands, goods, person, or reputation, shall have remedy by the due course of law; ... ”) (emphasis added).