Q&A: Invasion of Privacy

By Steven P. Aggergaard
Attorney at Law

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

24 Responses to “Q&A: Invasion of Privacy”

    • Cory Kim Says:

      My school recently gave us computers and track us and see what sites we are on wherever we go. They still track us when we are using our own internet. I am a minor. I don’t know if this still is invasion of privacy.

  1. Jake Says:

    My Employer has a video camera in the store where I work which streams a live feed to a home computer which he owns, Is this legal?

  2. Does a potential employer have the right to call people and ask about me with out my knowledge or consent?

  3. Lori Says:

    Had a male worker hold the restroom door wide open while I was in the stall. told him there was some one in. But he opened the door all the way any way. told him again in case he didn’t hear me ,that some one was in. he said “thats ok we just want to get measurements”.. I was very shocked, hurt & pissed. I could see him though the cracks so he could see me too.

  4. Sheryl Roddy Says:

    My ex posted nude pictures of me on facebook and other porn sites. And I have been recieving e-mail from different women trying to seduce me.

  5. Sheryl Roddy Says:

    My ex posted nude pictures of me on facebook and other porn sites. And I have been recieving e-mail from different women trying to seduce me. I live in Centerville, Il. 62207. Can you please provide information as to how to get help in my area for invasion of privacy.

  6. Aileen Mullany Says:

    I am looking for information on how media law overlaps with contract law and examples of it. Any help gratefully appreciated!

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  8. Carla Dick Says:

    I have a nosy neighbor down the hall from me who always opens her door whenever she hears me open mine and she listens to what I say to the person at my door and in the past she used to question me for info and then gossip about others and several different property managers have told her to stay out of my life and my business but she refuses to comply and respect my rights she told me once that she has a relative in the police department so she feels she has the right to do whatever she wants and thinks she can get away with invasion of privacy she made a pest of herself the day I was moving in and told my mom she would look out for me and I am an adult who does not need a stranger looking out for me and she has gotten so bossy and controlling just like my own mom she refuses to respect my rights to privacy and I doubt a restraining order would stop her I can’t do anything without her sticking her nose out her door even take the garbage out she may be lonely but that is no excuse to invade my life and meddle and snoop and the hallway is wide open for her to see me and we are not allowed to have anything in the halls now due to a fire hazard no amount of telling her to stay out of my life and business gets through to her she feels it is her right to know everything and yet she has a car to come and go as she pleases and I don’t last winter she went so far as to take my door decoration off and complain that it is too big for my door and she slapped her own decoration on my door which is really bizarre behavior and then the final straw was her demanding I let her in and she pushed her way in to gossip and lie to me. I can’t even have help taking heavy items out to the dumpster or the thrift store without her asking if I am moving out what the hell business is it of hers what goes on in my life when I don’t have much of a life being disabled unable to work what makes her think my life is so exciting she needs to spy on me which is against the law isn’t it?

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  19. TimTee Says:

    With todays technology, I have seen people from one side of the street in an apartment with equipment that is aimed at another apartment building across from it.

    i was able to see that the person aiming the equipment in the other apartment building across from it was also checking back and forth on their computer.

    I am not sure but there is something that they could be doing that would allow them priviate information if the other person is not aware that they are being spied upon.

    Is there such a thing whereas you can be seen in your apartment by this equipment used and it could be downloading information about your person or what you are doing within your private unit.

  20. Angela Says:

    Can an ex who has copies of my medical records from 2008 I requested for myself be introduced into a court case for parenting time modification case? He did not have my permission to posess these documents nor did he advise me he had them. Please advise.
    Thank you in advance

  21. kyle Says:

    My gf and I work for the same co. She however works at a totally diff location with different managers and supervisors… She used a sick day and did so according to company policy. When she called off, her boss over at that store than called my managers and ppl I work with to ask about if I had,called off that day as well, implying I am someone who would call off of work under false pretenses to have a day off with my gf..i however never called off and in fact already worked that day all morning… Is him calling my store and employees grounds for invasion of privacy? If not a suit, is it grounds to document it with HR at my company…

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