From: Staffing

Common Law Invasion of Privacy

Coverage

The following states, including the District of Columbia, apply the common law invasion of privacy:

• Alabama
• Alaska
• Arizona
• Arkansas
• California
• Colorado
• Delaware
• Florida
• Georgia
• Idaho
• Indiana
• Illinois
• Iowa
• Kansas
• Kentucky
• Louisiana
• Maine
• Maryland
• Michigan
• Mississippi
• Missouri
• Nevada
• New Jersey
• New Mexico
• Ohio
• Oregon
• Pennsylvania
• Tennessee
• Utah
• Vermont
• Washington
• West Virginia

Four Forms

Invasion of privacy at common law recognizes all four forms of the common law tort (civil wrong) invasion of privacy. The four forms are:

• Intrusion upon the solitude or seclusion of another.
• Public disclosure of private facts (publicity that violates the ordinary decencies).
• Publicity placing another in a false light in the public eye.
• Appropriation of name or likeness (appropriation of personality for a commercial use).

Intrusion Upon the Solitude or Seclusion of Another

Intrusion upon the seclusion of another is a common law action for the deliberate invasion of a person’s privacy by another. Generally, to bring a successful intrusion claim, an aggrieved party (plaintiff) must establish the following:

• The defendant, without authorization, intentionally invaded the private affairs of the plaintiff.
• That invasion was offensive to a reasonable person.
• The intrusion involved a private matter.
• The intrusion caused damages to the plaintiff (mental anguish or suffering).

In the employment context, intrusion into seclusion can occur in various situations, such as drug and alcohol testing, employee monitoring, and information related to determine eligibility for employment. However, intrusion claims regarding employee monitoring are the most prevalent. In addressing employee-monitoring claims, the courts have attempted to balance the employee’s reasonable expectation of privacy against the employer’s business interest in monitoring.

In regard to an employee’s expectation of privacy, the courts have generally held that an employee has no reasonable expectation of privacy where the employer notified the employee of the monitoring or the employee has consented to the monitoring. In addition, courts have held that employers have a strong business interest in monitoring employees. These interests can include:

• Measuring employee productivity.
• Maintaining confidentiality.
• Protecting trade secrets.
• Preventing inappropriate and unprofessional conduct.
• Preventing misuse of the employer’s property.

Public Disclosure of Private Facts

Publication of private facts is generally defined as the publication of matters concerning the private life of another that would be highly offensive to a reasonable person and is not of legitimate concern to the public. The basic argument behind these claims is that the disclosure or certain embarrassing facts are so outrageous and un-newsworthy that it violates the public’s sense of decency.

To bring a successful claim for publication of private facts, a person must generally establish that the defendant disclosed a private fact. Private facts are intimate details of a person’s private life that are not generally known. Private facts may include things such as:

• Social Security numbers.
• Medical conditions or health status.
• Sexual activity or history.
• Economic or financial status.

Employees are protected from public disclosures by employers about their personal life. Public disclosure of private facts may occur when an employer is searching for background information about an employee or applicant, learns embarrassing information, and then publishes that information by advising people who do not have a need to know. The truth of the information disclosed is irrelevant. Even disclosure of private information about an employee to co-workers who do not need to know could lead to liability. Disclosures of criminal convictions that are public record are not a basis for a claim.

False Light

Generally, false light invasion of privacy occurs when information about a person, that is false or places the person in a false light, is widely published and is highly offensive to a reasonable person. False light includes:

• Embellishment (adding false material to a story to place someone in a false light).
• Distortion (the arrangement of materials or photographs to give a false impression).
• Fictionalization (works of fiction containing disguised characters that represent real people or references to real people in fictitious articles).

In the employment context, employers may be held liable for false light invasion of privacy for false or misleading public statements about their employees. Most lawsuits alleging false light arise from employee references. Employers should take great care in providing references by making sure that employee references are true and accurate.

Appropriation of Name or Likeness

Appropriation of name or likeness invasion of privacy occurs when an individual’s name or likeness is used to promote a product or service without the individual’s consent. To establish a claim for misappropriation of name or likeness, a plaintiff must generally establish the following:

• The defendant used an aspect of the plaintiff’s identity that is protected by law (name or likeness).
• The defendant used the name, likeness, or other personal attributes for commercial or other exploitative purposes.
• The plaintiff did not provide permission for the offending use.

In the employment context, misappropriation of an employee’s name or likeness may occur when an employer uses an employee’s name or likeness in a company’s marketing materials without the employee’s prior consent.