Section 995.50. Right of privacy.

 

(1)  The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief:

(a) Equitable relief to prevent and restrain such invasion, excluding prior restraint against constitutionally protected communication privately and through the public media;

(b) Compensatory damages based either on plaintiff's loss or defendant's unjust enrichment; and

(c) A reasonable amount for attorney fees.

(2)  In this section, “invasion of privacy" means any of the following:

(a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.

(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.

(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.

(d) Conduct that is prohibited under s. 942.09 , regardless of whether there has been a criminal action related to the conduct, and regardless of the outcome of the criminal action, if there has been a criminal action related to the conduct.

(3)  The right of privacy recognized in this section shall be interpreted in accordance with the developing common law of privacy, including defenses of absolute and qualified privilege, with due regard for maintaining freedom of communication, privately and through the public media.

(4)  Compensatory damages are not limited to damages for pecuniary loss, but shall not be presumed in the absence of proof.

(6)  

(a) If judgment is entered in favor of the defendant in an action for invasion of privacy, the court shall determine if the action was frivolous. If the court determines that the action was frivolous, it shall award the defendant reasonable fees and costs relating to the defense of the action.

(b) In order to find an action for invasion of privacy to be frivolous under par. (a) , the court must find either of the following:

1. The action was commenced in bad faith or for harassment purposes.

2. The action was devoid of arguable basis in law or equity.

(7)  No action for invasion of privacy may be maintained under this section if the claim is based on an act which is permissible under ss. 196.63 or 968.27 to 968.373 .

1977 c. 176 ; 1987 a. 399 ; 1991 a. 294 ; 2001 a. 33 ; 2005 a. 155 s. 51 ; Stats. 2005 s. 995.50; 2013 a. 375 . Commercial misappropriation of a person's name is prohibited by Wisconsin common law. Hirsch v. S.C. Johnson & Son, Inc. 90 Wis. 2d 379 , 280 N.W.2d 129 (1979). Oral communication among numerous employees and jail inmates is sufficient to constitute publicity under sub. (2) (c). The plain meaning of “a place" in sub. (2) (a) is geographical and does not include a file of medical records. Hillman v. Columbia County, 164 Wis. 2d 376 , 474 N.W.2d 913 (Ct. App. 1991). Disclosure of private information to one person or to a small group does not, as a matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy claim. Whether a disclosure satisfies the publicity element of an invasion of privacy claim depends upon the particular facts of the case and the nature of plaintiff's relationship to the audience who received the information. Pachowitz v. LeDoux, 2003 WI App 120 , 265 Wis. 2d 631 , 666 N.W.2d 88 , 02-2100 . An action for invasion of privacy requires: 1) a public disclosure of facts regarding the plaintiff; 2) the facts disclosed were private; 3) the private matter is one that would be highly offensive to a reasonable person of ordinary sensibilities; and 4) the party disclosing the facts acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter or with actual knowledge that none existed. In order to find public disclosure, the matter must be regarded as substantially certain to become one of public knowledge. Olson v. Red Cedar Clinic, 2004 WI App 102 , 273 Wis. 2d 728 , 681 N.W.2d 306 , 03-2198 . The recording of sounds emanating from a neighbor's home using a common recording device that was placed inside the defendant's own window was not an intrusion of a nature highly offensive to a reasonable person in violation of sub. (2) (a). Poston v. Burns, 2010 WI App 73 , 325 Wis. 2d 404 , 784 N.W.2d 717 , 09-0463 . Sub. (2) (a) has a spatial basis — the invasion of privacy must occur in a place that a reasonable person would consider private or in a manner which is actionable for trespass. In this case, the only action that was allegedly taken by the defendant was the distribution of fliers containing information that was already available to the public. That the information may have inspired others to make phone calls, honk horns, or write letters does not mean that the defendant invaded the plaintiff's private space. Keller v. Patterson, 2012 WI App 78 , 343 Wis. 2d 569 , 819 N.W.2d 841 , 11-0334 . Sub. (2) (c) addresses situations where an individual makes public statements about the private life of another person in a highly offensive way. In order to fall under sub. (2) (c), the statements must make information public that was not previously available to the public. Keller v. Patterson, 2012 WI App 78 , 343 Wis. 2d 569 , 819 N.W.2d 841 , 11-0334 . The more reasonable interpretation of “use" in sub. (2) (b) is that it does not cover bidding on someone's name as a keyword search term. The holding is limited to the particular “non-visible" type of use at issue in this case. Habush v. Cannon, 2013 WI App 34 , 346 Wis. 2d 709 , 828 N.W.2d 876 , 11-1769 . The right to privacy law does not affect the duties of custodians of public records under s. 19.21. 68 Atty. Gen. 68. Surveillance of a school district employee from public streets and highways by the employer school district's agents to determine whether the employee was in violation of the district's residency policy did not violate this section. Munson v. Milwaukee Board of School Directors, 969 F.2d 266 (1992). While the Open Records Law and this statute are related laws, they are only related in that a finding under the Open Records Law that a record should be made public would necessarily mean that “the information was available to the public as a matter of public record." This is true because both statutes apply the same common-law balancing test when determining whether a record is public. When a trial court found only that the procedures delineated in the Open Records Law were not followed, those procedures had no impact on the question of whether a record is public under this section; the procedures are merely procedural, not substantive. Hutchins v. Clarke, 661 F.3d 947 (2011). A person's religious affiliation, standing alone, is not so private that publication would offend a reasonable person and constitute an invasion of privacy under sub. (2) (c). Briggs & Stratton Corp. v. National Catholic Reporter Publishing Co. 978 F. Supp 1195 (1997). The exclusivity provision of the Workers Compensation Act does not bar a claim for invasion of privacy under this section. Marino v. Arandell Corp. 1 F. Supp. 2d 947 (1998). In drafting this section, the legislature used New York's privacy statute as a model. The text of sub. (2) (b) duplicates nearly verbatim New York law. Case law under the New York privacy statute may be particularly useful. Bogie v. Rosenberg, 705 F.3d 603 (2013). A claim under sub. (2) (a) must show that the alleged intrusion into privacy would be highly offensive to a reasonable person. The question of what kinds of conduct will be regarded as a highly offensive intrusion is largely a matter of social conventions and expectations. The offensiveness of the intrusion itself cannot be based on the content or substance captured by virtue of the alleged intrusion. The fact that the plaintiff was embarrassed to be filmed saying something she regretted having said and later deemed offensive did not convert the filming itself into a highly offensive intrusion. Bogie v. Rosenberg, 705 F.3d 603 (2013). Where a matter of legitimate public interest is concerned, no cause of action for invasion of privacy will lie. This newsworthiness or public interest exception should be construed broadly, covering not only descriptions of actual events, but also articles concerning political happenings, social trends, or any subject of public interest. Wisconsin courts have also incorporated the common law exception for incidental use into the statute. Bogie v. Rosenberg, 705 F.3d 603 (2013). Court documents are matters of public interest. It follows that if court documents warrant the public interest exception, Internet search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception. To the extent that a search provider's profit motives undermine the reliance on the public interest argument, the exception applies even when the entities sharing the information do so largely, and even primarily, to make a profit. Stayart v. Google Incorporated, 710 F.3d 719 (2013). The absence of false light from the Wisconsin privacy statute. 66 MLR 99 (1982). The tort of misappropriation of name or likeness under Wisconsin's new privacy law. Endejan, 1978 WLR 1029. The Case for Reexamining Privacy Law in Wisconsin: Why Wisconsin Courts Should Adopt the Interpretation of the Tort of Intrusion upon Seclusion of Fisher v. Mount Olive Lutheran Church . Infield-Harm. 2004 WLR 1781. The Scope of Wisconsin's Privacy Statute. Backer. Wis. Law. Sept. 2003. Employer Liability for Employment References. Mac Kelly. Wis. Law. May 2008.