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Wisconsin Privacy and Defamation Claims in the Age of Social Media

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social_media_icons_18By Attorney Christopher Strohbehn

Twitter, Facebook, LinkedIn, YouTube, Pinterest, MySpace...the list of social media sites goes on and on as "viral" communication become part of our collective discussion both online and offline in the real world. What we are fast learning is that once a statement has been made on social media "it's out there." From celebrities to athletes to political figures, many have made statements on social media or in the "twitterverse" that they immediately regret. Sometimes, these famous peoples' twitter accounts have been "hacked" and a denial is made or an apology is issued quickly. However, nothing can replace the reality that the statement was made.

The epidemic of social media mistakes is not limited to Hollywood celebrities, professional athletes or political candidates or even corporations (Kitchen Aid even managed to inflame the masses during the recent Presidential debate between President Barack Obama and Mitt Romney).

Not to be excluded, these internet or social media gaffes are made everyday by people in Wisconsin. Many times it is an unintentional mistake that offends or potentially damages the reputation or another person or company. Other times the person has taken to social media to "even the score" air their personal grievances, bully people, publish private pictures or videos or otherwise attempt to hurt the reputation of another person or company. Is there anything legally that could be done? Should there be something that is legally done?

If the act is serious enough, it may warrant legal action. Should you run to the courthouse because someone called you a name on Twitter or Facebook? Probably not. But, what if they are using social media to publish private facts about your life? What if they are using social media to intentionally attack your business or professional reputation? These types of scenarios may call for another course of action.

In regards to publishing private information about you on the internet, Wisconsin has a statute that specifically deals invasion of privacy. Section 995.50(2), Stats., allows for a plaintiff to seek equitable relief (such as an injunction), recover compensatory damages and reasonable amount for attorneys when (2) In this section, "invasion of privacy" means any of the following:

  • 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.
  • 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.
  • 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.
  • 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.

Wisconsin statute [§Wis. Stat. 995.50(2), Stats.]  makes it clear that if a person or company committed an act that violated any of the four provisions indicated abobe it would potentially subject itself to a claim under this statute. A key provision to this statute that puts teeth to the policy is the award of attorney fees upon a successful claim. This attorney fee provision is a strong incentive to keep private matters to yourself.

Not necessarily included in this type of invasion of privacy claim are tort claims for defamation, libel or slander. These are traditional common law claims that can also apply to irresponsible use of the social media. For the most part, defamation is the main claim that could be used in most scenarios. The common law elements of defamation are as follows:

  • A false statement
  • Communicated by speech, conduct in writing to a person other than the one defamed; and
  • The communication is unprivileged and tends to harm one's reputation, lowering him or her in the estimation of the community or deterring third persons from associating with or dealing with him or her. Ladd v. Uecker, et. al, 2010 WI App 28 ¶8.

You can see how acting irresponsibly in social media could mean facing civil litigation fairly quickly. However, as alluded to earlier, simply being the victim of someone calling you a name or treating you in a derogatory matter on Twitter and Facebook is not basis for a successful lawsuit in Wisconsin. Your reputation has to actually be damaged. You would have to call people or experts to the stand to demonstrate the value of your reputation before and after the false statements were made. When would a cause of action be appropriate? The most common instance would probably be if a false statement that was made on social media cost you an employment or business opportunity. Unfortunately, with more Wisconsin employers and customers using social media to screen applicants or contractors the risk that you may have to address social media statements or reviews to an interviewer or customer is becoming an increasingly common part of the everyday business experience.

If you find yourself needing a lawyer because you are a victim or if you need to defend yourself from these types of defamation or invasions or privacy through the internet or social media, you should contact a lawyer with experience in dealing with these types of issues.

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