What is an Invasion of Privacy?
Invasion of privacy is a cause of action created by Wisconsin Statutes section 995.50. Under the statute, an invasion of privacy is defined in multiple ways; however, in the employment context, it generally arises when publicity is given to the private life of another, the disclosure of which would be highly offensive to a reasonable person.
The information disclosed 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 the private nature of the information is already public, then it is not private, and its disclosure does not constitute an invasion of privacy. Similarly, if the information disclosed is information the employee has voluntarily shared with others, then it is not protected. An employer may also have a defense if there is a significant reason to disclose the information.
Elements of an Invasion of Privacy and What Can be Recovered
Wisconsin courts have found that in order to prove a claim for invasion of privacy in the context discussed here, an employee has to establish:
- There was a public disclosure of factual information about the employee
- The information disclosed was private, not voluntarily shared, by the employee, with others, and not publicly available
- The subject matter of the private information is highly offensive to the average person
- The party responsible for the public disclosure acted unreasonably or recklessly with respect to whether there was a legitimate public interest in the fact(s) disclosed or with the actual knowledge that there was none
Elements of Public Disclosure
To prove a public disclosure, generally an employee has to prove that the disclosure was made to a substantial number of people. However, based on the nature of the employee’s relationship with the people with whom private information was shared, sometimes a small group can suffice. For example, courts have held that disclosures among employees or coworkers can be sufficient.
If an employee proves a claim, an employee 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 employee’s compensable “loss”
- Attorney fees
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