Invasion of Privacy

Illinois courts have recognized a cause of action for invasion of privacy for over 25 years now. However, in recent years, privacy and reputational tort attorneys have increasingly added this cause of action to their arsenal when suing past employers on behalf of former employees. Additionally, plaintiffs have added claims for invasion of privacy when suing for defamation, particularly internet defamation. At its core, the tort protects an individual’s right “to be let alone.”

Four separate legal theories, found in Restatement Second of Torts Section 652, make up the tort of invasion of privacy: (i) intrusion upon the seclusion of another; (ii) appropriation of name or likeness; (iii) publicity given to private life; and (iv) publicity placing a person in a false light (often shortened to just “false light” by courts and privacy law attorneys).

Intrusion upon Seclusion

The claims most frequently raised, particularly in the employment context, are intrusion upon the seclusion of another and false light. The Restatement Second of Torts Section 652B describes the theory of intrusion upon seclusion as: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

Intrusion upon seclusion requires some type of highly offensive prying into the physical boundaries or affairs of another person. Unlike the other legal theories that make up invasion of privacy claims, inclusion on seclusion of another is not based on the publication or publicity of any information. Instead, it is based on the outrageous, offensive prying into the private life of another. Examples of conduct, that would fall into this legal theory include:

• Eavesdropping Invading someone’s home;
• Wire tapping;
• Monitoring private communications such as email without consent;
• Illegally searching someone’s briefcase or electronic device;
• Peering into the windows of a private home; or
• Cyberstalking or making persistent, unwanted telephone calls or text messages.

Often, intrusion upon the seclusion of another claims arise in conjunction with sexual harassment claims in cases involving the workplace. Liability may arise out of conducting involving a defendant’s inquiries about or attempts to discover an employee’s sexual practices, experiences, or inclinations.

False Light

The Restatement Second of Torts Section 652E describes the privacy tort of placing another in a false light as: “One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized manner or the false light in which the other would be placed.”

The elements of a claim for false light invasion of privacy under Illinois law are:

1. Giving publicity;
2. to a false statement, representation, or imputation;
3. which is understood as being of or concerning the plaintiff;
4. which places the plaintiff in a false light which would be highly offensive to a reasonable person; and
5. which results in damage.

Just as in defamation law, it matters in false light claims whether the plaintiff is a public or private figure. If the plaintiff is a public figure, plaintiff must prove actual malice (i.e. that the defendant realized that the statement was false or published the statement with reckless disregard of the truth) by clear and convincing evidence. If plaintiff is a private figure, plaintiff may prevail by proving that defendant negligently made the false statement. False light invasion of privacy is similar to defamation but can be harder to prove because the falsity must be found to be highly offensive.

Examples of conduct that has been found to be highly offensive and capable of supporting a false light claim include falsely attributing an opinion or statement to the plaintiff or using the plaintiff’s name on a document without its authorization. Unlike intrusion upon seclusion claims, the essence of a false light invasion of privacy claims lies in the publicity of a statement rather than the invasion into the solitude or affairs of the plaintiff.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting defamation, slander libel, cyber smear, and invasion of privacy lawsuits. As is required to be one of the best privacy law attorneys, we are knowledgeable regarding the changes and complexities of this evolving area of the law. We are committed to fighting for our clients’ rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated non-compete and trade secret and covenant not to compete cases for clients all over the Chicago area.

Lubin Austermuehle, P.C.’s Chicago invasion of privacy attorneys have offices in Elmhurst, Wilmette and Chicago, Illinois. We represent clients throughout Illinois, including Chicago and surrounding areas, DuPage County, as well as Indiana and Wisconsin. To schedule a consultation with one of our Chicago Defamation Libel or Slander Attorneys contact us online or by telephone at 630-333-0333.