Invasion of Privacy is a cause of action created by within Wisconsin Statutes. Under the statute, an “invasion of privacy” can mean 1 of 4 things:
- Highly offensive intrusion of privacy in a private place, similar to trespassing.
- The use of a person’s name, image, or likeness, without written consent, for the purposes of advertising or in any other way engaging in trade.
- Publicity given to an aspect of a person’s private life that is highly offensive to a reasonable person and is done either unreasonably or recklessly as to whether there was a legitimate public interest in giving publicity to the private matter, or with actual knowledge that there was not one.
- Conduct prohibited by Wisconsin Statute, relating to taking photographs of nude individuals without their consent and at a time when the individuals would expect privacy.
In the employment context, invasion of privacy claims generally arise under the third definition, when publicity is given to the private life of another, the disclosure of which would be highly offensive to a reasonable person.
To constitute an invasion of privacy, the private information made public has to be disclosed to a substantial number of people or to a group of a smaller size in particular circumstances and cannot be information that is publicly available. If information is publicly available, an individual has no right to privacy in it. Similarly, if the information disclosed is information an individual has already voluntarily shared with others, then it is not protected.
Wisconsin courts have found that in order to prove a claim for invasion of privacy for publicity given to an aspect of a person’s private life, an individual has to establish:
- There was a public disclosure of a fact regarding the individual
- The fact(s) disclosed were private and not publicly available or voluntarily disclosed to others by the individual
- The subject matter of the fact(s) or the fact(s) itself is highly offensive to a reasonable person
- The party responsible for the public disclosure acted unreasonable or recklessly with respect to whether there was a legitimate public interest in the fact(s) disclosed or with actual knowledge that there was none
To prove a “public disclosure,” generally an individual has to prove that the disclosure was made to a substantial number of people; however, in particular circumstances, and based on the individual’s relationship to the group, a small group can suffice. For example, courts have held that disclosures among employees/coworkers can be sufficient.
If the individual proves his/her claim, s/he can obtain equitable relief (generally a court order directing the party responsible for the disclosure to not do it again), compensatory damages (monetary damages based on the individual’s compensable “loss”), and attorney fees.