Heidi Black v. Jeffrey Allen Kelly

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 1, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1239 Cir. Ct. No. 2020CV353

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

HEIDI BLACK,

PLAINTIFF-APPELLANT,

V.

JEFFREY ALLEN KELLY AND MID-WEST MANAGEMENT, INC.,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
VALERIE BAILEY-RIHN, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.

¶1 NASHOLD, J. Heidi Black appeals the dismissal on summary
judgment of her claim of public disclosure of private facts brought against her ex-
husband, Jeffrey Allen Kelly, and his employer, Mid-West Management, Inc.
No. 2021AP1239

(Mid-West) (together, Defendants).1 See WIS. STAT. § 995.50(2)(am)3. (2019-
20).2 Black argues that Kelly publicized her financial disclosure statement (FDS)
when he uploaded a blank page containing a hyperlink to the FDS to an internal
folder on a work website, which caused her financial information to be available
through an internet search. However, the undisputed facts establish that other than
Black, only one other person—Black’s trusted friend—saw the FDS on the
internet before it was removed. On this set of facts, we conclude that Black
cannot meet the “publicity” element of her claim, because she cannot show that
“the matter [wa]s made public by communicating it to the public at large, or to so
many persons that the matter must be regarded as substantially certain to become
one of public knowledge.” See Olson v. Red Cedar Clinic, 2004 WI App 102, ¶9,
273 Wis. 2d 728, 681 N.W.2d 306, citing Zinda v. Louisiana Pac. Corp., 149
Wis. 2d 913, 929, 440 N.W.2d 548 (1989).3 Accordingly, we affirm.

BACKGROUND

¶2 The following material facts are undisputed. Kelly is an on-air radio
personality with 94.1 WJJO, a Madison radio station, and Mid-West is his
employer. Kelly and Black married in 2007 and divorced in 2016. Per statute, as

1
Black brought separate claims of public disclosure of private facts against Kelly and
Mid-West. Because the operative facts overlap, for ease of reading, we discuss the “claim” in the
singular.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
WISCONSIN STAT. § 995.50(2)(am)3., setting forth the tort of public disclosure of
private facts, is identical to prior statutes providing for this cause of action. See WIS. STAT.
§ 895.50(2)(c) (2003-04); WIS. STAT. § 995.50(2)(c) (2017-18). Therefore, throughout this
decision, we rely on case law discussing this tort without specifically noting which version of the
statute was then in effect.

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part of their divorce, the parties exchanged FDSs. See WIS. STAT. § 767.127(1)
(requiring full disclosure of financial information in a divorce action). In addition
to setting forth her assets and liabilities, Black’s FDS includes other sensitive
personal information, such as her social security number, insurance policy
numbers, and bank names with the last four digits of the account numbers.

¶3 On one occasion, Peter Ellenbecker, Black’s friend, used the Google
search engine to search for the name “Heidi Black.” On the Google search results
page, Ellenbecker saw an entry called “Heidi Black, 941JJO.” Ellenbecker clicked
on this link and was able to view Black’s FDS. Ellenbecker contacted Black, told
her what he had found, and emailed her a hyperlink to the FDS.4

¶4 Black opened the hyperlink and viewed her FDS. Black also
performed a Google search for “Heidi Black,” and she observed that her FDS
appeared to be accessible through the WJJO website. Black contacted Kelly, told
him what she had found, and asked him “to make that go away right now.” Kelly
told Mid-West personnel about the matter. Mid-West removed the FDS from the
website, and it was then no longer accessible. Kelly sent a text message to Black
to apologize, stating, “I have zero idea how or what happened but it’s gone
forever.” Ellenbecker’s discovery of the FDS, his communication with Black, her
communication with Kelly, and the FDS’s removal from the WJJO website all
occurred on December 30, 2019. Because Defendants do not dispute the point, for
purposes of this decision, we will assume that Kelly was the person who made the
FDS available through an internet search.

4
“The definition of a hyperlink is text or an image within a file on your computer that
you can click on that gives access to another document or image.” Berkson v. Gogo LLC, 97
F. Supp. 3d 359, 372 n.2 (E.D.N.Y. 2015) (internal quotation marks and quoted source omitted).

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¶5 Black sued Defendants for invasion of privacy—public disclosure of
private facts. See WIS. STAT. § 995.50(2)(am)3. Black alleged that, “[o]n or
around May 24, 2018, Black’s financial disclosure statement was posted as a PDF
file to the WJJO website, under a [named] folder.” Therefore, Black alleged, her
“financial disclosure statement was … available to the public for at least eighteen
months.”

¶6 Defendants moved for summary judgment, submitting, among other
evidence, the affidavit and deposition transcript (with accompanying exhibits) of
Robert Moore, a web developer for Mid-West. That evidence includes the
following averments and testimony. Black’s FDS was accessible via a hyperlink
on an “attachment page”: a page that contains a hyperlink but is otherwise blank.
During the creation of a draft web page, this attachment page (containing the
hyperlink to the FDS) was uploaded to a folder within the WJJO website. The
attachment page, however, was never “incorporated” into a final post. Thus,
“[t]here was no link to the attachment page on the WJJO website, so one would
not be able to access the [FDS] when navigating within the WJJO website.”
Instead, the FDS was only available through the type of search that Ellenbecker
performed. That is, to view the FDS, one would have to: (1) search for Black’s
name using Google or another search engine; (2) click on the search engine link,
which opened the attachment page; and (3) click on the hyperlink within the
attachment page.

¶7 Moore further opined that Black’s FDS was only accessed twice. To
reach this conclusion, Moore evaluated several reports generated by Google
Analytics, a Google service that analyzes website traffic and activity. The Google
Analytics reports provide data about web traffic to six discrete locations, all within

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the WJJO website, that relate to the search term “Heidi.” Relying on these reports,
Moore concluded that there were only two distinct visits to Black’s FDS.5

¶8 Based on this evidence, and as pertinent to this appeal, Defendants
argued that Black could not show that her financial information was publicized, as
required by WIS. STAT. § 995.50(2)(am)3. Defendants contended that only two
people (Ellenbecker and Black) had viewed the FDS online. Defendants pointed
out that, per Ellenbecker’s deposition testimony, he had not disclosed the FDS or
its contents. Black, moreover, testified that she trusted Ellenbecker and had no
reason to believe that he either had shared or would share the FDS. Therefore,
Defendants argued, Black had not met the “publicity” element of her claim as a
matter of law.

¶9 As we discuss further below, Black disputed Moore’s conclusion
that only two people had viewed the FDS online. Specifically, Black argued that
the same Google Analytics reports upon which Moore relied, along with his
deposition testimony and affidavit, supported the reasonable inference that the
FDS had been viewed on twenty-seven separate occasions. Thus, Black argued,
up to twenty-five people other than she and Ellenbecker might have viewed the
FDS. Relatedly, Black pointed to Kelly’s deposition testimony that he had
“verified” that the FDS was accessible through the WJJO website. According to
Black, the reasonable inference from this testimony was that at least three people
had viewed the FDS online—meaning that the Google Analytics reports were
inaccurate or that Moore’s expert conclusion was wrong.

5
Black does not dispute that Google Analytics tracks activity on a given website,
regardless of the method used to visit or access the website. In other words, Google Analytics
does not track only website traffic via the Google search engine.

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¶10 The circuit court rejected Black’s arguments and determined that
there was no reasonable dispute as to the number of people (two) who had viewed
the FDS online. Because it was undisputed that Ellenbecker and Black had
viewed the FDS, it followed that Ellenbecker was the only person to whom
Black’s financial information had been disclosed. Furthermore, Ellenbecker’s
undisputed testimony was that he had not shared the FDS or its contents. The
court remarked, “I don’t think this information, having two people see it, with the
evidence that I have, constitutes publicity.” The court therefore concluded that, as
a matter of law, Black could not satisfy the “publicity” element of her claim of
public disclosure of private facts.

¶11 The circuit court further stated that it would entertain a request from
Black to “ask for more time,” so that she could consult with an expert who might
be able to provide an alternative opinion as to how many people viewed the FDS.
The court therefore explained that it would postpone signing the summary
judgment order for one week. Black did not request more time or file additional
evidence or briefing on this matter. The court dismissed Black’s claim with
prejudice, and Black appeals.

DISCUSSION

I. Standard of Review and Principles of Law

¶12 We review a decision on summary judgment de novo. Laughland v.
Beckett, 2015 WI App 70, ¶15, 365 Wis. 2d 148, 870 N.W.2d 466. Summary
judgment is appropriate where the pleadings and evidence show that there is no
genuine issue of material fact and that the movant is entitled to judgment as a
matter of law. WIS. STAT. § 802.08(2); Laughland, 365 Wis. 2d 148, ¶15. This
dispute also requires that we interpret WIS. STAT. § 995.50, which likewise

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No. 2021AP1239

involves a question of law that we determine de novo. Teschendorf v. State Farm
Ins. Cos., 2006 WI 89, ¶9, 293 Wis. 2d 123, 717 N.W.2d 258.

¶13 Under WIS. STAT. § 995.50, “[t]he right of privacy is recognized in
this state,” and one whose privacy is “unreasonably invaded” is entitled to various
forms of relief, including compensatory damages and attorney fees.
Sec. 995.50(1). Section 995.50(2)(am) recognizes four categories of invasion of
privacy claims, including the claim at issue here: public disclosure of private
facts. Section 995.50(2)(am)3. defines this cause of action as follows:

Publicity given to a matter concerning the private
life of another, of a kind highly offensive to a reasonable
person, if the defendant has acted either unreasonably or
recklessly as to whether there was a legitimate public
interest in the matter involved, or with actual knowledge
that none existed. It is not an invasion of privacy to
communicate any information available to the public as a
matter of public record.

¶14 Thus, there are four elements to a claim of public disclosure of
private facts. Zinda, 149 Wis. 2d at 929. First, the plaintiff must show that there
was “a public disclosure of facts regarding the plaintiff.” Id. “In other words,
there must be ‘publicity,’ which means that the matter is made public by
communicating it to the public at large, or to so many persons that the matter must
be regarded as substantially certain to become one of public knowledge.” Id.,
citing RESTATEMENT (SECOND) OF TORTS § 652D, cmt. a. “Second, the facts
disclosed must be private facts.” Zinda, 149 Wis. 2d at 929. “Third, the private
matter made public must be one which would be highly offensive to a reasonable
person of ordinary sensibilities.” Id. at 930. Finally, “the defendant must act
either unreasonably or recklessly as to whether there was a legitimate public
interest in the matter, or with actual knowledge that none existed.” Id.

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No. 2021AP1239

II. The Publicity Element of Black’s Claim

¶15 Black argues that the circuit court erred as a matter of law in
concluding that she could not establish the “publicity” element of her claim of
public disclosure of private facts. Black raises three arguments as to why Kelly’s
disclosure of her financial information either raises a genuine issue of material fact
as to whether publicity occurred or constitutes publicity as a matter of law.

¶16 First, Black argues that there is a genuine issue of material fact as to
whether additional people besides she and Ellenbecker viewed the FDS via an
internet search. Second, she contends that, consistent with Pachowitz v. LeDoux,
2003 WI App 120, ¶¶19-21, 24-25, 265 Wis. 2d 631, 666 N.W.2d 88, there is a
genuine issue of material fact as to whether Ellenbecker had disclosed or would
disclose her financial information, and that such actual or potential disclosure
satisfies the publicity requirement. Third, she argues that Kelly’s making her FDS
available on the internet constitutes publicity per se, in that this was a
communication to the public at large. See Zinda, 149 Wis. 2d at 929 (“It has been
stated that a publication in a newspaper, even of a small circulation, may be
sufficient to give publicity within the meaning of the term.”); see also
RESTATEMENT (SECOND) OF TORTS § 652D, cmt. a. (AM. L. INST. May 2022
update) (“[A]ny publication in a newspaper or a magazine, even of small
circulation … or any broadcast over the radio … is sufficient to” meet the
“publicity” element of this claim). We reject these arguments and conclude that
Defendants are entitled to judgment as a matter of law.

A. The number of people who viewed Black’s FDS online

¶17 Black argues that Defendants’ own summary judgment evidence
supports the reasonable inference that more than two people accessed her FDS

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online. Accordingly, Black argues, there is a genuine issue of material fact as to
whether her financial information was publicized under WIS. STAT.
§ 995.50(2)(am)3.

¶18 As discussed above, the evidence provided by Defendants’ expert
Moore is that Black’s FDS was accessible through an “attachment page” (a page
containing a hyperlink to the FDS). According to Moore, the Google Analytics
reports showed that there were twenty-seven discrete visits, or “unique
pageviews,” to the attachment page. Crucially, however, these reports showed
only two “unique pageviews” to the FDS itself. Moore therefore opined that
Black’s FDS was only viewed twice.

¶19 Black’s argument to the contrary stems primarily from her own view
of how the Google Analytics reports should be interpreted. She points out that, on
average, visitors to the attachment page spent roughly the same amount of time
visiting that site as did visitors to the FDS itself: two minutes and twenty seconds
visiting the attachment page, versus two minutes and twelve seconds visiting the
FDS. Black contends that there is no explanation for why visitors to the
attachment page would “sit and stare for minutes at a time” at a blank page.
Therefore, Black argues, we should infer that these visitors were actually viewing
the FDS. But Moore’s uncontroverted expert opinion puts this argument to rest, in
that he specifically opined that, per the Google Analytics reports, there were only
two visits to the FDS itself. In the face of this expert evidence, we will not
ourselves rely on Black’s unsupported reading of the Google Analytics reports to
speculate, as Black does, that the average length of time visitors spent looking at
the attachment page somehow means that these visitors must have taken the next
step and looked at the FDS. Indeed, Moore’s expert opinion was that only twice
did someone actually open the hyperlink to the FDS.

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¶20 Black further argues that the Google Analytics reports or Moore’s
analysis must be inaccurate because, based on the witness testimony, at least three
people—Black, Kelly, and Ellenbecker—viewed the FDS. Black and Ellenbecker
indeed testified that they accessed the FDS by clicking on a hyperlink
(Ellenbecker found the hyperlink through a Google search, and Black opened the
hyperlink that Ellenbecker had emailed to her). Kelly, however, never stated that
he accessed the FDS in this manner or at all. Rather, Kelly testified that he
“verif[ied] that the document was indeed where … Black said it was” and then
told Mid-West personnel to remove the FDS from the WJJO website. That Kelly
“verified” the FDS’s location does not mean that he opened the hyperlink (i.e., that
he accessed the FDS using a method that would be reflected as a “unique
pageview” in the Google Analytics reports). Therefore, Black fails to offer a basis
in the record to support the reasonable inference that there is some inaccuracy in
Defendants’ evidence, which might raise a genuine issue of material fact as to how
many people viewed the FDS.

¶21 We reiterate that Black did not submit any evidence with her
summary judgment response that contradicted Moore’s expert conclusion or
otherwise supported these two arguments. Nor did she take the circuit court up on
its offer to allow Black to submit additional evidence on this point that might have
affected the court’s ruling. We therefore conclude that Black has failed to
establish a genuine issue of material fact as to how many people accessed her FDS
online. Rather, Defendants’ evidence shows that only two people accessed the
FDS: Black and Ellenbecker. Accordingly, there is no genuine dispute that
Ellenbecker was the sole person to directly learn of Black’s financial information
from Kelly’s internet disclosure.

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B. Disclosure of financial information to or by Ellenbecker

¶22 Black alternatively argues that, even assuming that Ellenbecker was
the only person besides herself to view the FDS online, the question of whether
this constitutes “publicity” should not have been decided on summary judgment.
In support of this position, Black directs us to Pachowitz, 265 Wis. 2d 631. In that
case, Pachowitz sued LeDoux, an emergency medical technician, after LeDoux
shared information about Pachowitz’s possible overdose with Pachowitz’s
coworker at a local hospital, who then told other hospital staff. Id., ¶¶4-7.
LeDoux had met the coworker socially two weeks earlier; on that occasion, the
coworker “spoke about Pachowitz and her medical condition.” Id., ¶6. LeDoux
“gained the impression” that Pachowitz and the coworker “were very close
friends”; therefore, LeDoux phoned the coworker “after the EMT emergency
response because she was concerned about Pachowitz and thought [the coworker]
could possibly be of assistance to Pachowitz.” Id., ¶¶6-7.

¶23 LeDoux moved for summary judgment on the ground that her
disclosure to the coworker could not, as a matter of law, satisfy the “publicity”
element of Pachowitz’s claim of public disclosure of private facts. Id., ¶10. The
circuit court denied LeDoux’s motion, and we upheld that ruling. Id., ¶¶2-3, 10.
We “reject[ed] the … assertion that a disclosure of private information to one
person can never constitute ‘publicity,’” noting that the relevant case law did not
necessarily require a disclosure to more than one person. Id., ¶21. Thus,
summary judgment was not appropriate on Pachowitz’s claim because

the character and nature of the one person to whom the
offending information was communicated, here [the
coworker], was a matter that had to be probed at a full trial.
As the trial court aptly stated, there was a genuine issue of
material fact as to “the type and character of [the
coworker]” because there was no evidence as to whether

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[the coworker] was “the biggest gossip in Muskego and
[the hospital employing Pachowitz and the coworker]” or
whether “she had the stiffest upper lip of anyone in the
state.”

Id. In support of our conclusion, we pointed to evidence indicating that the
coworker did, in fact, have “loose lips” and that LeDoux knew about this character
trait (after all, this is how LeDoux first learned about Pachowitz and her medical
condition). Id., ¶25.

¶24 We further discussed persuasive authority holding that a disclosure
to one or a few people may constitute “publicity” where the “plaintiff has a special
relationship with the individuals to whom the matter was disclosed.” Id., ¶22. We
observed, “[T]he rationale behind this rule is that the disclosure may be just as
devastating to the person even though the disclosure was made to a limited
number of people.” Id. Thus, “[w]hen a special relationship exists, [‘]the
public[’] can include one person or small groups such as fellow employees, club
members, church members, family or neighbors.” Id., ¶23. As applied to
Pachowitz’s situation, we noted that Pachowitz’s husband had asked that
Pachowitz not be transported to the hospital where she and the coworker worked.
Id., ¶25. This evidence “support[ed] an inference that Pachowitz wanted to avoid
disclosure of her need for emergency medical care to her fellow employees.” Id.
Thus, for two separate but related reasons, we concluded that Pachowitz’s claims
could not be decided on summary judgment and that “disclosure of private
information to one person or to a small group does not, as a matter of law in all
cases, fail to satisfy the publicity element of an invasion of privacy claim.” Id.,
¶24.

¶25 Notably, Pachowitz does not hold that the “publicity” determination
contains a factual component that can never be decided on summary judgment.

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Thus, in Olson, 273 Wis. 2d 728, ¶¶4-5, 10-11, we upheld the summary judgment
dismissal of a claim of public disclosure of private facts brought against a clinic
that shared the plaintiff’s medical information with the school psychologist at her
son’s school. We observed that “the records were sent to only one person: the
school psychologist,” who “was prohibited from telling anyone what was in the
records.” Id., ¶10. In addition, there was no evidence indicating that the records
were in fact seen by anyone besides the psychologist. Id. We also noted that there
was no evidence of any “special relationship” between the plaintiff and the
psychologist. Id., ¶¶9, 11. Thus, we contrasted the case with Pachowitz:

There, the private information was told to Pachowitz’s co-
worker, who in turn told other people. The defendant knew
that the person she gave the information to had “loose lips.”
We stated that the defendant “should have appreciated the
risk that [the co-worker] would further disclose
Pachowitz’s private information.” Here, there is no
evidence that [the plaintiff] and the school psychologist had
any relationship whatsoever, let alone a special
relationship. Further, there is no evidence that the
psychologist was known to have “loose lips.” To the
contrary, because of the psychologist's obligation to keep
the information confidential, there was virtually no risk that
he would further disclose [the plaintiff’s] information.

Id., ¶11 (citation omitted).

¶26 Our case law therefore instructs that a claim of public disclosure of
private facts is not precluded, as a matter of law, solely because the defendant
disclosed private facts to only one or a small number of third parties. Rather, at
least two factual disputes may make summary judgment inappropriate. First, there
may be a genuine issue of material fact as to whether the “character and nature” of
the third party, Pachowitz, 265 Wis. 2d 631, ¶21, means “that the matter must be
regarded as substantially certain to become one of public knowledge,” Zinda, 149
Wis. 2d at 929. See also Olson, 273 Wis. 2d 728, ¶¶10-11. Second, there may be

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a genuine issue of material fact as to whether the third party had a “special
relationship” with the plaintiff, such that the disclosure to the third party was “just
as devastating” as a disclosure to a wider audience might have been. Pachowitz,
265 Wis. 2d 631, ¶¶22-25; Olson, 273 Wis. 2d 728, ¶¶9, 11. It is the facts of the
particular case that determine whether these (or other) considerations might
preclude summary judgment on a claim of public disclosure of private facts.

¶27 Here, Ellenbecker testified that he had not shared Black’s FDS or its
contents. Black, for her part, testified that she considered Ellenbecker a trusted
friend and had no reason to think that he either had disclosed or would disclose her
FDS. Thus, Defendants argued to the circuit court, Black could not establish the
publicity element of her claim as a matter of law.

¶28 In her reply brief, and for the first time, Black argues that
Ellenbecker’s actions and character are relevant to determining whether she meets
the “publicity” element of her claim. Black points out that Ellenbecker initially
testified that he did not print, save, or share the FDS. Black argues, however, that
“this testimony was exposed as false in the course of the deposition, when it was
established that … Ellenbecker had saved the document, and in fact produced it.”
On this point, Black references Ellenbecker’s subsequent testimony that he had
both downloaded the FDS and provided it to Black’s counsel. Ellenbecker further
testified that he did not delete the FDS “permanently” because he “didn’t know if
it would be needed again” (presumably, in the litigation). Black implies that
Ellenbecker’s purported change in testimony creates a genuine issue of material
fact as to whether her financial information is “substantially certain to become one
of public knowledge.” See Zinda, 149 Wis. 2d at 929.

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¶29 Preliminarily, it is unclear whether Black means to argue that
Ellenbecker had shared her financial information or if she is arguing only that
Ellenbecker might share the information in the future. If Black means to argue the
former, she does not explain— beyond this reference to “false” testimony—why
Ellenbecker’s clarifying or changing his testimony about saving her FDS supports
the reasonable inference that he had disclosed her financial information.6 If Black
means to argue the latter, she cites no case law and develops no argument
supporting the premise that—absent any “special relationship” between the
plaintiff and the third party, see Pachowitz, 265 Wis. 2d 631, ¶¶22-23—the mere
potential for future disclosure, without the third party’s having already disclosed
any private facts, is sufficient to establish publicity under WIS. STAT.
§ 995.50(2)(am)3.

¶30 In any event, Black has forfeited her argument that Ellenbecker’s
character or actions are relevant to determining whether she meets the “publicity”
element of her claim. On summary judgment, Defendants consistently argued that
Ellenbecker was trustworthy and had not shared any of Black’s financial
information. Black provided no contrary evidence and, in fact, made no argument
at all on these points. Had Black done so, Defendants potentially could have
introduced additional evidence supporting their position or made additional
arguments to the circuit court. Thus, this argument has been forfeited, and Black
does not offer (nor do we discern) any reason to disregard the forfeiture rule. See
State v. Huebner, 2000 WI 59, ¶¶11-12 & n.2, 235 Wis. 2d 486, 611 N.W.2d 727

6
It is unclear whether Black means to argue that Ellenbecker’s providing a copy of the
FDS to her counsel constitutes a disclosure. If so, we reject this argument as undeveloped. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we may choose not to
address vague or undeveloped arguments).

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(the forfeiture rule—that issues must be raised to the circuit court—“is an essential
principle of the orderly administration of justice” that exists, in part, to allow
“both parties and the trial judge notice of the issue and a fair opportunity to
address the” argument, to “encourage[] attorneys to diligently prepare for and
conduct trials,” and to “prevent[] attorneys from ‘sandbagging’ errors, or failing to
[raise an argument] for strategic reasons”).

¶31 We note a separate but related reason to reject Black’s argument.
Despite knowing Defendants’ position on Ellenbecker’s character and actions,
Black did not make any argument on this point until her reply brief. Thus,
Defendants have actually had no opportunity to address Black’s position that
Ellenbecker gave “false” testimony, that Ellenbecker cannot be trusted, or that
Ellenbecker had shared or would share her financial information. In fairness to
respondents, we generally do not consider arguments raised for the first time in the
reply brief. A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588
N.W.2d 285 (Ct. App. 1998). We decline to do so here.

¶32 Finally, we note that Black has never argued that she meets the
publicity element because she has a “special relationship” with Ellenbecker, such
that she had particular reasons for not wanting him to know her financial
information. See Pachowitz, 265 Wis. 2d 631, ¶¶22-25; Olson, 273 Wis. 2d 728,
¶¶9, 11.

¶33 We therefore conclude that Black has not demonstrated that the
disclosure of the FDS to Ellenbecker means that her financial information is
“substantially certain to become one of public knowledge.” See Zinda, 149
Wis. 2d at 929.

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No. 2021AP1239

C. Internet publication as “publicity per se”

¶34 Finally, Black argues that we should follow the lead of other
jurisdictions holding that an internet publication constitutes “publicity per se”—in
the same sense that, for example, publication in a newspaper may be “publicity”—
regardless of the number of people who viewed the information. See, e.g., Yath v.
Fairview Clinics, N.P., 767 N.W.2d 34, 42-45 (Minn. Ct. App. 2009) (under the
theory that “a single communication to the public” constitutes publicity, “the
publicity element of an invasion-of-privacy claim is satisfied when private
information is posted on a publicly accessible Internet website,” and “[t]he number
of actual viewers is irrelevant”). Black argues that it is “surely a communication
to the public at large” to “[e]xpos[e] the [FDS] to the world’s dominant search
engine … thereby making it available to anyone who cared to search for
Ms. Black’s name.”

¶35 Given the specific circumstances of this case, we disagree. The tort
of public disclosure of private facts hinges on there being a public communication.
See WIS. STAT. § 995.50(2)(am)3. (requiring “public disclosure”); Zinda, 149
Wis. 2d at 929 (interpreting § 995.50(2)(am)3. as requiring “publicity,” meaning
that “the matter is made public by communicating it to the public at large, or to so
many persons that the matter must be regarded as substantially certain to become
one of public knowledge.”). Thus, “publicity” differs from “publication”—as the
term “publication” is used “in connection with liability for defamation”—in that a
“publication” “includes any communication by the defendant to a third person.”
RESTATEMENT (SECOND) OF TORTS § 652D, cmt. a. (emphasis added). “The
distinction, in other words, is one between private and public communication,” id.,
with only the defendant’s public communication being actionable under
§ 995.50(2)(am)3., Zinda, 149 Wis. 2d at 929.

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No. 2021AP1239

¶36 Here, Kelly made Black’s FDS available through an internet search,
but Kelly’s “communication” was not obviously or necessarily “public.” Kelly,
while creating a draft web page, uploaded an attachment page (containing a
hyperlink to the FDS) to a folder within the WJJO website. Per Moore’s
uncontroverted opinion, the attachment page was never “incorporated” into a final
post, meaning that “one would not be able to access the [FDS] when navigating
within the WJJO website.” Under these circumstance, we cannot conclude that the
internal uploading of the FDS, without actual publication on the WJJO website,
constitutes a per se communication to the public at large. See Zinda, 149 Wis. 2d
at 929.

¶37 Moreover, a communication to the public at large necessarily means
that the information reaches the public. See id.; see also RESTATEMENT (SECOND)
OF TORTS § 652D, cmt. a. (a public communication is “a communication that

reaches, or is sure to reach, the public.”). Although—in a general sense—Black’s
financial information was (in her words) “[e]xpose[d] … to the world’s dominant
search engine,” it does not necessarily follow that any information accessible via a
search engine should always and necessarily be considered “publicized.” We
deem it significant that a person entering the name “Heidi Black” into a search
engine would not have immediately or directly discovered that Black’s FDS was
available online. Instead, that person would have had to click on the search result
“Heidi Black, 941JJO,” thereby opening a blank attachment page containing a
hyperlink. The person then would have had to click on the hyperlink—which,
notably, contained the term “FDS” in a string of words and numbers, but did not
otherwise suggest that it provided access to Black’s financial information. In
contrast to an internet posting made on, and easily accessible through, a public
website, the “publication” that occurred here did not “reach” the public directly,

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No. 2021AP1239

and should not give rise to liability in the same manner. In short, the public
policies underlying this tort are not served by treating the mere availability of
private facts on the internet—regardless of the multiple steps required to access
the information and the inscrutable description of what is actually being
accessed—as a communication “reaching” or “sure to reach” the public at large.
See RESTATEMENT (SECOND) OF TORTS § 652D, cmt. a.

¶38 Finally, we acknowledge that a communication to the public at large
does not necessarily depend on the number of people to whom the information
was communicated. See Zinda, 149 Wis. 2d at 929 (“[A] publication in a
newspaper, even of a small circulation, may be sufficient to give publicity within
the meaning of the term.”). Under the circumstances of this case, however, it is
significant that only one person besides Black viewed the FDS online. Under
these facts, there is no viable argument that WIS. STAT. § 995.50(2)(am)3. treats a
disclosure to a single person as a communication to the public at large solely
because the private facts were disclosed via the internet. Accordingly, we reject
Black’s publicity per se argument.7

CONCLUSION

¶39 For the reasons stated, we affirm the circuit court order granting
Defendants’ motion for summary judgment and dismissing Black’s claim with
prejudice.

7
We do not need to reach, and therefore do not address, Defendants’ additional
argument that summary judgment was appropriate because Kelly did not intentionally disclose
Black’s FDS. See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436,
842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties
when one issue is dispositive.”).

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No. 2021AP1239

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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