Wisconsin Common Law

  1. Invasion of Privacy

    Wisconsin has codified “invasion of privacy” at Wis. Stat. § 995.50 (here), which sets forth three of the traditional common law invasion of privacy torts (intrusion on seclusion, disclosure of private facts, and misappropriation of likeness).  Each tort is sufficiently similar to the typical common law and Restatement formulations that cases from other jurisdictions discussing common law claims are likely to be considered persuasive. However, because this is a statutory claim in Wisconsin, it is treated above.

    One drafting tip regarding settlements in privacy cases comes from a bankruptcy case:  In In re Wettstein, 09-36498, 2010 WL 2772628 (Bankr. E.D. Wis. July 13, 2010), the wife had sued her husband for posting nude photos of her around Fox Cities. They settled, and the settlement agreement provided that the action was willful and malicious, and should be considered punitive damages.  Accordingly, when he later declared bankruptcy, the debt was held nondischargeable.

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  2. Defamation

    1. Introduction

      Defamation claims are frequently brought in concert with invasion of privacy claims, particularly public disclosure of private facts. Defamation requires additional elements that the information be false and not privileged.

    2. Elements of a Claim

      The standard elements of defamation in Wisconsin are: (1) A false statement; (2) communicated by speech, conduct or in writing to a person other than the one defamed; and (3) 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 or dealing with him or her.1

      Courts have also used the elements found in Restatement (Second) of Torts § 558 (1977): (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.2

      The “statement” that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Milkovich v. Lorain Journal Co., 497 U.S. 1, 22, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990).

      Notice Requirement: Under Wisc. Stat. § 895.05, before filing suit, a person believing he has been defamed in a newspaper, magazine or periodical must give notice to the publication, and give them an opportunity to correct the libelous matter. The libeled person must give notice of the statements alleged to be defamatory, and a statement of the true facts. The publication must publish a retraction if the true facts are ascertainable with reasonable certainty, or else print the libeled person’s statement of the facts.

      This section applies only to print media, not broadcast. Hucko v. Schlitz Brewing Co., 100 Wis. 2d 372, 302 N.W.2d 68, 70 (Wis. Ct. App.1981). In addition, “Periodicals” are, based on Webster’s New International Dictionary, publications that appear at regular or stated intervals. Accordingly, bulletin/message board functions online have been held to be outside the scope of the statute. It's In the Cards, Inc. v. Fuschetto, 193 Wis. 2d 429, 436, 535 N.W.2d 11, 14 (Ct. App. 1995).

    3. Cases

      1. Ladd v. Uecker, 780 N.W.2d 216 (Wis. Ct. App. 2010)

        • Procedural Posture: Plaintiffs appealed trial court’s determination that her defamation and privacy claims were beyond the statute of limitations, and that she failed to state a claim because the statements were protected by various privileges.

        • Law: defamation; invasion of privacy

        • Facts: Defendants were a sports broadcaster and a baseball team. After the plaintiff engaged in a multi-year pattern of harassment of the defendants, defendants moved for an injunction. As part of the application for the injunction, defendants described harassing behavior by the plaintiff. When the application’s contents were made public, plaintiff sued the defendants for defamation. The trial court dismissed plaintiff’s complaint, holding that the application for the injunction could not be the basis of defamation claims because the statements in the application were protected by judicial privilege, and further, that the plaintiff brought her claims too late because she brought them more than two years after the statements were published.

        • Outcome: The appellate court affirmed the dismissal of plaintiff’s complaint because defendants’ statements were protected by judicial privilege and plaintiff’s claims were barred by the statute of limitations.

        • Special Notes: The court held that Wisconsin follows the single publication rule for defamation claims, whereby the statute of limitations begins to run at the time a statement is posted online, notwithstanding continued access and copying. The court also rejected her right of privacy claim because postings of her photo did not involve private places, using her likeness for advertising or trade, or depictions of nudity.

      2. Zinda v. Louisiana Pacific Corp., 149 Wis. 2d 913, 440 N.W.2d 548 (Wis. 1989)

        • Procedural Posture: Plaintiff appealed grant of summary judgment on his defamation claim.

        • Law: invasion of privacy; defamation.

        • Facts: Plaintiff sued after his employer published the reason for his firing in the company newsletter.

        • Outcome: The appellate court remanded the case for a new trial, because although publication was covered by the common interest privilege, it should have been a jury question regarding whether the privilege was abused.

        • Special Notes: Defamatory speech is privileged in several circumstances, including when made in furtherance of common interests. The privilege applies to communications between employers and persons having a common interest in the employee's conduct, including communications regarding the behavior and performance of employees. However, publication outside of the scope of the privilege (for different reasons, to different people, or containing material not protected by the privilege) can forfeit the privilege, although incidental excess exposure is permitted. Forfeiture is typically a jury question.

      3. Laughland v. Beckett, No. 2014AP2393, 2015 WL 5009252 (Wis. Ct. App. Aug. 25, 2015)

        • Procedural Posture: Defendant appealed trial court’s judgment in favor of plaintiff on defamation claim.

        • Law: defamation

        • Facts: Plaintiff sued defendant after defendant created a Facebook page under plaintiff’s name. Defendant used the fake Facebook account to make disparaging statements about plaintiff, and sent friend requests to the plaintiff’s acquaintances. On appeal, defendant argued that the statute of limitations precluded plaintiff’s claim, that the statements were substantially true, that there was no harm to plaintiff’s reputation, and that there was insufficient proof to support the circuit court’s award of general and punitive damages.

        • Outcome: The appellate court rejected the defendant’s arguments and affirmed the circuit court’s judgment in favor of the plaintiff because defendant failed to establish that the defamatory statements were “substantially true,” were not protected “opinions” because they seemed to convey fact (e.g. accusing plaintiff of defrauding banks), and the plaintiff’s reputation was harmed.

        • Special Notes: The case notably suggests that the fact that defamatory comments were placed on a social media page accessible to other social media users, and the defendant’s active efforts to promote the page were sufficient to show harm to the plaintiff’s reputation. It also notes that proof of specific loss by reason of the defamation is not required to recover damages–in other words, a victim does not have to show she suffered a specific monetary loss or loss of business.

    4. Practice Pointers

      • In most states this tort would overlap with false light invasion of privacy, but Wisconsin does not recognize false light.

      • In actions for defamation by implication, the implications must “fairly and reasonably convey” defamatory meanings in order for the defendant to be held liable. See, e.g. Mach v. Allison, 259 Wis. 2d 686, 712 (Wis. Ct. App. 2002) (holding that the court decides as a matter of law “whether an alleged defamatory implication is fair and reasonably conveyed by the words and pictures of the publication or broadcast” and that if there is a competing non-defamatory implication, the jury must decide which the publication or broadcast implies)

      • The law of absolute and conditional privilege also applies, via statute, to invasion of privacy claims, and will defeat claims on the same basis.3

    1. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472, 477 (1997). 

    2. Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis. 2d 905, 912, 447 N.W.2d 105, 108 (Ct. App. 1989). 

    3. Zinda, 440 N.W.2d at 557. 

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  3. Intentional Infliction of Emotional Distress ("IIED")

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may sue under the common law tort of intentional infliction of emotional distress or outrage in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements of a Claim

      To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege: (1) the defendant's conduct was intentional, that is, the defendant behaved as she did for the purpose of causing emotional distress; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's conduct caused the injury; and (4) the plaintiff suffered an extreme and disabling emotional response to the conduct.1

    3. Cases

      1. Rabideau v. City of Racine, 243 Wis. 2d 486, 627 N.W.2d 795 (Wis. 2001)

        • Procedural Posture: Plaintiff appealed grant of summary judgment on emotional distress claims.

        • Law: negligent and intentional infliction of emotional distress.

        • Facts: Plaintiff witnessed a City police officer shoot his dog, which subsequently died from the injuries.

        • Outcome: Summary judgment affirmed. No material issue of fact in the record demonstrates that the officer acted for the purpose of causing plaintiff emotional distress.

        • Special Notes: To establish intent, “[t]here must be something more than a showing that the defendant intentionally engaged in the conduct that gave rise to emotional distress in the plaintiff; the plaintiff must show that the conduct was engaged in for the purpose of causing emotional distress.”

      2. Doe v. Saftig, 09-C-1176, 2011 WL 1792967 (E.D. Wis. May 11, 2011)

        • Procedural Posture: Resolution of defendants’ summary judgment motion

        • Law: Wis. Stat. § 995.50(2)(a); also FCRA, due process, and negligent and intentional infliction of emotional distress.

        • Facts: Facts about plaintiff’s medical history and personal debt were improperly disclosed to those without a need to know during the interview process for a job at the police department. Disciplinary hearings regarding the improper disclosure were covered in the press (although plaintiff’s name was not disclosed). Plaintiff alleged the incident caused her stress and caused her to be unable to succeed at her job with the police department.

        • Outcome: No claim for intentional infliction of emotional distress.

        • Special notes: Disclosure of gossip cannot not be an intent to cause emotional distress.

    4. Practice Pointers

      The statute of limitations is two years, running from the time the injury is or should have been discovered, or from the time that a minor victim turns 18, if the injury is known before.2

    1. Doe v. Saftig, 09-C-1176, 2011 WL 1792967 (E.D. Wis. May 11, 2011) (citing Alsteen v. Gehl, 124 N.W.2d 312, 318 (Wis. 1963)). 

    2. See Hammer v. Hammer, 418 N.W.2d 23, 142 Wis. 2d 257, 261 n.4 (1987). 

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  4. Negligent Infliction of Emotional Distress (“NIED”)

    Although the nonconsensual online publication of intimate photographs or videos may cause emotional distress, this tort is unlikely to be available in Wisconsin because public policy requires that the emotional distress have occurred as a result witnessing an extraordinary event that kills or severely injures a family member.

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  5. Injurious Falsehood

    At common law, “slander of title” (or “injurious falsehood”) requires a statement with regard to real property that interferes with the business relations of plaintiff. In Wisconsin, the tort has been codified, limiting it to documents that are submitted for filing, and thus making it even less relevant to WMC situations. See Wis. Stats. § 706.13, Kensington Dev. Corp. v. Israel, 419 N.W.2d 241, 244 (1988).

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  6. Conspiracy

    1. Introduction

      For the above causes of action, a WMC victim may also be able to bring a civil conspiracy claim.

    2. Elements of a Claim

      In Wisconsin, a civil conspiracy is defined as a combination of two or more persons by some concerted action to accomplish some unlawful purpose or to accomplish by unlawful means some purpose not in itself unlawful. Maleki v. Fine-Lando Clinic Chartered, S.C., 152 Wis. 2d 73, 86 (Wis. S. Ct. 1991). The essence of the action is the damages that arise out of the conspiracy, not the conspiracy itself. Id. at 87.

    3. Cases

      1. Winslow v. Brown, 125 Wis. 2d 327 (Wis. Ct. App. 1985)

        • Procedural Posture: Plaintiff appealed grant of summary judgment in defendants’ favor on a personal injury claim.

        • Law: Civil conspiracy

        • Facts: Plaintiffs sought damages for injuries caused when the automobile in which the defendants were passengers struck one of the plaintiffs. Plaintiff had been riding a bicycle on a trail exclusively reserved for bicycle use, and plaintiff alleged that the defendants conspired with the driver of the automobile to operate on the bicycle trail. Plaintiffs argued that by acquiescing to the illegal plan to ride in the automobile on the bicycle trail, the defendants participated in the civil conspiracy, and further, the defendants encouraged the illegal plan by agreeing to be passengers during the illegal trip.

        • Outcome: The appellate court affirmed the grant of summary judgment for the defendant because the “mere knowledge, acquiescence or approval of a plan, without cooperation or agreement to cooperate is not enough to make a person a party to a conspiracy.” Id. at 331. In other words, a defendant may not be held liable for conspiracy simply because he is aware of someone else’s plan to commit wrongdoing–the defendant must actually cooperate in the plan in order to be held liable.

        • Special Notes: If a WMC victim brings a civil conspiracy case, all the conspirators must have intentionally participated. For example, if the alleged conspirator has only received the victim’s photos, or passively watches another commit a crime, this is probably insufficient to establish a civil conspiracy.

      2. Modern Materials, Inc. v. Advanced Tooling Specialists, Inc., 206 Wis. 2d 435 (Wis. Ct. App. 1996)

        • Procedural Posture: Plaintiff appealed grant of summary judgment in favor of defendants.

        • Law: Civil conspiracy

        • Facts: Plaintiff corporation filed action against former manager for conspiracy to injure and damage corporation’s business after former manager and other of corporation’s former employees started a competing company. The corporation argued that the former manager acted “unlawfully” because he breached a fiduciary duty to the corporation.

        • Outcome: The appellate court affirmed the grant of summary judgment in favor of the defendants because a plaintiff must allege an “unlawful act” and “[a] statement that a party acted unlawfully without showing what he or she did is not sufficient, nor will an allegation of a lawful act support a charge of conspiracy.”

        • Special Notes: A WMC victim bringing a civil conspiracy claim must include in his or her complaint specific acts alleged to be unlawful. The unlawful act need not be a criminal act—any willful, actionable violation of a civil right is sufficient.

    4. Practice Pointers

      • Co-conspirators are held joint and severally liable.1

      • There is a six-year statute of limitations for tort actions in Wisconsin which also applies to civil conspiracy actions. However, the statute of limitations for each tortious act accrues individually. Therefore, if a conspiracy involved acts over a multi-year period, damages from older acts may be barred by a statute of limitations even if damages from newer acts are not.2

    1. Segall v. Hurwitz, 114 Wis. 2d 471, 482 (Wis. Ct. App. 1983) 

    2. See id. at 482-83. 

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  7. Tortious Interference with Economic Advantage

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may bring a claim under the common law tort of intentional interference with prospective economic advantage in situations where the material’s publication has interfered with the victim’s employment or ability to earn a living.

    2. Elements of a Claim

      The elements of a claim for tortious interference with a contract are: (1) the plaintiff had a current or prospective contractual relationship with a third party; (2) the defendant interfered with that contractual relationship; (3) the interference was intentional; (4) a causal connection exists between the defendant's interference and the plaintiff's damages; and (5) the defendant was not justified or privileged to interfere.1

    3. Cases

      1. Wolf v. F & M Banks, 534 N.W.2d 877 (Wis. App. 1995)

        • Procedural Posture: Plaintiff’s appeal of summary judgment.

        • Law: tortious interference with employment contract

        • Facts: A fellow employee wrote a letter detailing sexual harassment and financial misconduct allegations. The letter was discussed internally, including by the employee’s manager, and plaintiff was ultimately fired. He claimed the letter was defamatory and interfered with his employment contract. The trial court found the claims preempted by the Worker’s Compensation Act.

        • Outcome: The case was remanded for further findings because it was unclear whether in writing the letter the co-worker acted in bad faith. While ordinarily the employee’s letter was protected by a privilege, if the letter was written in bad faith, it would not be protected by a privilege intended to allow the employee to fulfill his duty to investigate misconduct claims.

        • Special Notes: Note that the question with regard to the employee writing the letter was whether she acted in bad faith or with improper motive—not whether the allegations were true.

    4. Practice Pointers

      The statute of limitations is six years.2

    1. Wolnak v. Cardiovascular & Thoracic Surgeons of Cent. Wisconsin, S.C., 2005 WI App 217, 287 Wis. 2d 560, 574, 706 N.W.2d 667, 675 (citing Duct-O-Wire Co. v. U.S. Crane, Inc., 31 F.3d 506, 509 (7th Cir.1994).) 

    2. Segall v. Hurwitz, 114 Wis. 2d 471 (App. 1983) (citing Wisc. §893.19(5)). 

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