COURT OF APPEALS

DECISION

DATED AND FILED

September 1, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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 exhusband, Jeffrey Allen Kelly, and his employer, Mid-West Management, Inc. 
No. 2021AP1239

2

(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. 
No. 2021AP1239

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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).
No. 2021AP1239

4

¶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 
No. 2021AP1239

5

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. 
No. 2021AP1239

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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 
No. 2021AP1239

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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.
No. 2021AP1239

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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 
No. 2021AP1239

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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.
No. 2021AP1239

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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.
No. 2021AP1239

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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 
No. 2021AP1239

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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. 
No. 2021AP1239

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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 coworker, 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 
No. 2021AP1239

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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.
No. 2021AP1239

15

¶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). 
No. 2021AP1239

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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. 
No. 2021AP1239

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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.
No. 2021AP1239

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¶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, 
No. 2021AP1239

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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.”). 
No. 2021AP1239

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By the Court.—Order affirmed.

Not recommended for publication in the official reports.