Insureon Blog

Can Social Media Advertising Be an Invasion of Privacy?

10. March 2014 08:30

Man peeping through blinds

Yes, the way you advertise your small business through various social media sites can trigger an invasion of privacy claim. Say, for example, you use a past client's words about your business to promote your products or services on your Facebook page. If you don't have permission from your client to use their testimony, they could mount a lawsuit against your company for invading their right to privacy. (Related blog post: "Social Media and Business Risk: Slander, Libel, Invasion of Privacy, and Copyright Infringement.")

The legal landscape for these kinds of claims is still evolving, so where one court may affirm a plaintiff’s claim, another may rule that there wasn't a reasonable expectation of privacy on the social networking website. But one certainty is that privacy is a hot-button issue right now, especially since social media can create a public audience at the click of the mouse.

Understanding How Invasion of Privacy Works

How can you protect your business from an invasion of privacy lawsuit? Small business insurance can act as a financial backup plan for a number of advertising injury lawsuits (invasion of privacy claims included), but that doesn't mean you shouldn't try to avoid a messy tort whenever possible.

To mitigate the risk of unintentional civil wrongs, you have to know what constitutes as an invasion of privacy. These violations include the following.

Intrusion upon Seclusion

Think of intrusion upon seclusion as an intentional violation of one's seclusion, private affairs, solitude, or concerns. The litmus test for this offense is whether or not a reasonable person would be offended by the alleged intrusion.

Though you may think anything you find on Facebook or Twitter is public knowledge, some courts disagree – especially if the user took measures to limit their audience through privacy settings. So say the dietician clinic you run is trying to find out about others' weight struggles. You use your employees' social media accounts to learn about their friends' New Year's resolutions, health complaints, and weight loss issues.

You use this information to reach out to a couple of people you stumbled across. If they find out your business couldn't have accessed this information through its own social media page, you could be sued for breaking privacy rules. Not to mention, your employees may be held liable for the invasion, too.

Public Disclosure of Private Facts

Some facts are public information, while others are private. According to Wassom.com's article, "Common Law Invasion of Privacy Claims in Social Media," the Virginia Circuit Court of Richmond holds that information posted on a public platform and available to anyone with Internet access is not private information.

Your business can run into trouble if it posts embarrassing, privileged, or confidential information about another person on its social media page. For example, say you are a fitness instructor who is helping a client lose weight. You name the client in a Facebook post to promote your services, citing that she lost 40 pounds in two months. However, since you didn't get permission to disclose this information, she could sue you for publicly posting about her private life and confidential health information. All her attorney would have to prove is that the information wasn't a public concern and that a reasonable person would find the disclosure offensive.

Third-Party Disclosure

There is perhaps no murkier water than social media sites' terms of service agreements and the (perhaps overlooked) privacy the user waives when they sign up. Wassom.com notes that Lane v. Facebook exemplifies how a third party can be held liable for the public disclosure of an individual's private information when Facebook's Beacon program triggered the class-action suit.

The program updated users' profiles when they shopped or visited websites that contracted with Facebook. The case involved lead plaintiff Sean Lane, who had bought a ring for his wife on Overstock.com. Immediately, the purchase was broadcast to his network of 700+ friends without his knowledge or approval.

The judge remarked that the program caused users embarrassment and damages to employment, business, or personal relationships, noting that many people shop online to increase their privacy. The case settled for $9.5 million.

It's a case worth heeding if your business acquires information about individual purchasing behaviors. Unless you have explicit permission to broadcast the findings, keep it confidential.

Misappropriation of Someone's Name or Likeness

If you don't have permission to use someone's name, photograph, likeness, voice, or endorsement to promote your services or products, you could be sued for invading their privacy if you use it anyway.

Let's say you notice that a celebrity wore a necklace similar to the costume jewelry you create. If you use the celebrity's unauthorized picture on your Etsy shop's page to help sell your designs, you could face a lawsuit for implying that the celebrity endorses your company. The same goes for past clients, customers, and models. You can't post their pictures, testimonials, or names to promote your business unless you have their consent.

False Light

Your small business can be sued for false light advertising if you portray someone as something they are not (e.g., with a misleading caption under a photo). For instance, say you snap a picture of a person at an animal rights rally and post it to your nonprofit dog rescue's social media page. In the caption, you indicate that the person was a protester. If that person was merely a bystander, they could sue you for negatively impacting their reputation.

Unlike libel lawsuits, which deal with written defamation, false light claims don't have to prove that the person's reputation suffered as a result of the post. They only need to show that the statement would be offensive to a reasonable person – a caveat that gives these cases considerable wiggle room when it comes to interpretation.

Worried that your business could easily make these privacy violations while marketing through social media? Read how to avoid social media blunders and advertising injuries in our eBook Tweet or Twibel: The Small-Business Owner's Guide to Advertising Injury.

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Advertising Injury | General Liability Insurance | Risk Management | Small Business | Small Business Risk Management | Tips for All Small Businesses

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