Chapter 2: What Counts As Advertising Injury?
Part 4: Invasion of Privacy
"Invasion of privacy" refers to intrusion into someone's personal life without just cause. Although the right to privacy is not a First Amendment right — such as free speech — the legal definition of the right to privacy has been evolving for the past 100 years. Currently, the term is defined as the right of a person "to withhold himself and his property from public scrutiny if he so chooses."
There are four types of privacy invasion claims:
- False light.
- Intrusion upon seclusion.
- Public disclosure of private facts.
We go into more detail about each of these claims below.
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.
Intrusion upon Seclusion
Think of intrusion upon seclusion as an intentional violation of someone's 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. Through your employees' social media accounts, you 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, to see if they want to participate in a weight loss challenge. 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. 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.
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.
Keep reading for a real-life example of a misappropriation lawsuit.
Next: Case Study: A Celebrity Misappropriation Lawsuit