Invasion of Privacy
Everyone has a basic right to privacy. Although that right has limitations and exceptions, the right exists, and there are criminal and civil punishments for people who violate someone else’s right to privacy.
Michigan recognizes four types of situations that are considered invasion of privacy such that you can file a civil lawsuit. Those four types are 1) intrusion on a person’s seclusion or solitude; 2) public disclosure of embarrassing private facts about a person; 3) publicity that places a person in a false light in the public eye; and 4) appropriation, for the defendant’s advantage, of the person’s name or likeness.
1. Intrusion on a person’s seclusion or solitude.
People have a reasonable basis to assume their privacy is protected in certain places or situations. For example, you may expect that your home is a private place where no one is observing you without your knowledge because it is not a place that is open to the public. You may also reasonably expect privacy in a public bathroom or changing room, because even though other people are allowed in there at different times there is an understanding that you are not being observed while there. If you are in a place where you can reasonably expect privacy, an intentional, unreasonable intrusion is prohibited.
You are using a bathroom at a gym. The door is locked and there are no windows, so you have no reason to think that anyone can see you changing or using the facilities. Unbeknownst to you, there is a hidden camera installed in the ceiling. This is an intentional, unreasonable intrusion in a place where you had a reasonable expectation of privacy. This is an intrusion on your seclusion or solitude and thus an invasion of privacy.
You are using a bathroom at a gym. You forget to lock the door, and someone else accidentally walks in while you are changing your clothes. Upon seeing that you are in the bathroom, the person immediately turns away, leaves, and closes the door. Although this is a place where you have a reasonable expectation of privacy, entering the bathroom was an accident, not an intentional, unreasonable intrusion, and thus this is not legally considered an intrusion on your seclusion or solitude.
You and your partner are at the grocery store and get into a loud fight about your sex life. Other people at the store stop to listen to your fight. Although their decision to stop and listen to your fight is intentional, you are not in a place where you have a reasonable expectation of privacy, and thus this is not legally considered an intrusion on your seclusion or solitude.
2. Public disclosures of embarrassing private facts about a person
A person’s right to privacy includes protection from the publication of facts that should be kept private. The elements of a claim for public disclosure of embarrassing private facts about a person are 1) that the facts at issue are embarrassing; 2) that the Defendant had no duty to disclose the embarrassing facts; and 3) that the disclosure appears to be an unreasonable public disclosure to another person.
You win the school spelling bee. A reporter for the local paper publishes a story about your victory in the newspaper. Although the reporter did not have a duty to disclose your win and the information was disclosed to another person, the fact that you won the spelling bee is not considered embarrassing and thus it is not an invasion of privacy.
You have an affair that you want to keep private. The person with whom you are having the affair is accused of a crime, but was actually with you when the crime occurred. The police interrogate your lover under oath as part of their investigation. While telling the police about the affair may be embarrassing and a disclosure to another person, there was a duty to disclose and thus it is not an invasion of privacy.
Your ex secretly recorded your sexual encounters with him. After you break up, he shows the videos to his friends. The videos are considered embarrassing, he had no duty to disclose them, and they were unreasonably disclosed to another person. This is an invasion of privacy.
3. Publicity that places a person in a false light in the public eye
Publicity that places a person in a false light in the public eye exists when one person does something wrongful, such as using a derogatory term, that portrays someone else in a negative and untrue light publicly. It is similar to defamation but is not the exact same standard- for example, you may not need to make a statement that is provably untrue to prevail.
Someone posts on Facebook that they don’t know what goes on in your home, but you seem like the kind of person who could be a child abuser and your children always seem scared of you. You are not a child abuser. While this may not be defamation, since the person did not flat-out say that you are a child abuser, it does cast you in a false, negative light. This is an invasion of privacy.
Someone posts on Facebook that you are selling your dog. You are not selling your dog. People keep calling you to ask about the dog and the whole situation upsets you. However, suggesting that you are selling your dog does not paint you in a negative false light overall.
4. Appropriation, for the Defendant’s gain, of a person’s name or likeness
To prevail in a case for misappropriation or commercialization of your name or likeness, you must show that someone used your name or image, without your permission, for his own financial gain. Unlike type 2, public disclosure of embarrassing private facts about a person, the picture or information used does not have to be embarrassing.
You are on the subway, and a stranger takes your picture without your permission and runs away. A month later you see that picture on an advertisement for shampoo, saying “Do you want beautiful hair like this? Buy Kazoo Shampoo!” Although you look great in the picture and there is nothing insulting or embarrassing about the advertisement, the use was unauthorized and was for the Defendant’s financial gain. This is an invasion of privacy.
You are on the subway, and a stranger takes your picture without your permission and runs away. A month later you see the same stranger showing the picture to a hair dresser, saying that he wants his hair to look like yours. You have no reason to think the picture is being used in any other way. Although the use of the picture was unauthorized, the use was not for the Defendant’s financial gain. This is not an invasion of privacy.
You are on the subway, and a stranger takes your picture without your permission. He then approaches you and says that he took the picture because your hair looks beautiful and he wants to use it as an advertisement for his new salon. You agree to let him use the photo, and he does. Although the picture was used for financial gain, the use was not unauthorized, so this is not an invasion of privacy.
It is important to note that more than one type of invasion of privacy may apply to a situation. For example, if someone installs a hidden camera in a bathroom, takes pictures and videos, and then sells those pictures and videos online, this is an intrusion on a person’s privacy, public disclosure of embarrassing private facts about a person, AND appropriation, for the Defendant’s advantage, of a person’s name or likeness.
If you would like more information, we encourage you to contact us for a free, confidential consultation.