Q&A: Invasion of Privacy

By Steven P. Aggergaard
Attorney at Law
saggergaard@yahoo.com

Posting private information on the Internet can get you in trouble. You risk being sued for invasion of privacy or for disclosing things about your job that you have no right to disclose. You also risk getting fired.

On the other hand, having private information about you posted on the Internet can be maddening, embarrassing, and maybe actionable in a court of law.

Here are some general answers to privacy-related questions that arise for Minnesotans who participate in Internet communication. What follows is not legal advice. As with any legal issue, each set of facts must be analyzed under the specific law that applies. If you have Minnesota-related legal concerns, shoot me an e-mail (saggergaard@yahoo.com) or give me a call (651-402-8505).  I am happy to listen to your concerns free of charge.

If the information that I post is true, can I be sued?
Yes. While truth is a defense to a lawsuit for defamation, you can get in trouble for disseminating or even accessing certain private information about individuals, corporations, and other organizations.

What laws are you talking about?
Invasion of privacy laws, trade secrets laws, employment laws, among others.

When is privacy “invaded”?
There are three types of invasion of privacy in Minnesota: (1) when publicity is given to private facts, (2) when one’s “seclusion” is intruded upon, or (3) when one’s name or likeness is “appropriated.”

What is considered “private”?
Past court decisions strongly suggest that the naked body, medical information, and probably Social Security numbers will be considered “private.” But Minnesota courts have had little opportunity to provide other examples because invasion of privacy became actionable only in 1998, and ten years is not very long in the legal business. [Minnesota was the 48th state to establish invasion of privacy as a cause of action.] The Minnesota Supreme Court has suggested that “private” matters are “guarded and preserved,” while “public” matters are “exposed and active.”

Who must prove invasion of privacy?
The person bringing the lawsuit–the plaintiff.

What sorts of Internet postings might constitute “publicity”?
“Publicity” is a communication made “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.” Communication to a single person or even a small group of persons might not constitute an invasion of privacy.

So for purposes of what’s “publicity,” there’s a difference between sending an e-mail message to one person and posting private information in a blog?
That appears to be true, although no Minnesota court has yet addressed the issue.

When is “seclusion” intruded upon?
When someone undertakes a “highly offensive” inquiry into a matter in which a person has a “legitimate expectation of privacy.”

So I can get in trouble even if I don’t communicate the private information to anybody?
Correct. The offense is in seeking and obtaining the information, not in disseminating it. For example, most people would consider hacking into someone’s e-mail account as being “highly offensive.” Doing that could bring a lawsuit for invasion of privacy, as well as federal criminal charges.

When is privacy invaded by “appropriation”?
When someone “appropriates to his own use or benefit the name or likeness of another.”

Is this the same as identity theft?
No. Identity theft is a crime. Appropriation is more about making money off someone else’s name or photograph without that person’s consent.

So when online I shouldn’t claim I’m someone I’m not?
No, you should not. Don’t make a fake Facebook page.

Can I post celebrities’ pictures on my web site?
Not if you’re trying to make a buck off them, unless they give consent. In addition, whoever took the photograph has a copyright interest in that image.

What about real video?  Can I go to a City Council meeting and post video that I took?
Absolutely.  The general rule is that you may post video or photographs that you take from a public place where you have a right to be.  See all those cameras on lampposts in downtown St. Paul?  They are taking video of you, and under current law the police probably are not invading your privacy.  Sorry.

You mean I can stand on the street and take video of what is happening inside my neighbor’s house?
Well, yes, but be careful.  How you use the video is the issue.  If e-mailing the video to a friend or posting it on your blog would be “highly offensive” to the average Minnesotan, you risk being liable for invasion of privacy.

Can a company sue me for invasion of privacy?
Probably. In 2003, the Minnesota Court of Appeals suggested that an Indian band and an Indian community had privacy interests in certain financial information. The same may hold true for corporations and other organizations.

I hate my job, and I have an ax to grind. Can I post stuff about my employer?
Be very, very careful. Even if you do not have a written employment contract, the law generally requires you to be loyal to your employer, and “at will” employees [those without union representation and/or a written employment contract] can be fired for any reason that is not discriminatory.

Isn’t it discrimination to violate my First Amendment rights?
When you work for a corporation or any other private employer, you leave your First Amendment rights at the door. The First Amendment applies only to the government, and even government employers enjoy wide latitude to prevent and punish employees’ job-related speech.  That’s the way it is.

Can I go online and grind the ax anonymously?
Your chance of getting “caught” is less if you do not use your name. But be aware that your employer has an absolute right to read your e-mail and examine your Internet usage, so anonymity may be difficult to maintain.

I like my job. So can’t I write anything I want about work?
Not necessarily. Your employer likely appreciates positive publicity, but more and more employers are developing blogging policies to be included in their employee handbooks. In addition, Minnesota law forbids you from disclosing certain work-related information such as trade secrets and customer lists during as well as after your employment.

I quit my job, so can’t I say whatever I want?
No. Your employment contract or employee handbook may have conditioned your employment on you not disclosing certain information, even upon your departure. Former employees are sued all the time for disclosing confidential information, and often for good reason.

But don’t “whistleblower” laws protect me?
Sure they do. The law protects you from being retaliated against for reporting that your employer is engaged in certain illegal behavior. But courts have not yet determined that blogging or maintaining a web site is the best way to blow the whistle.

My job fired me, so what’s the harm in letting loose? I mean, they can’t fire me twice, right?
Right. But they can sue you once, and once is all it takes. Even if you no longer live in the state where you used to work, your former employer may have legal grounds to begin a legal action for invasion of privacy, defamation, or violation of trade secret laws.

© Steven P. Aggergaard • All rights reserved