Wisconsin Statutory Civil Law

  1. Invasion of Privacy

    1. Introduction

      Wisconsin has codified the traditional common law torts in Wis. Stat. § 995.50(2). The definitions are similar, although not identical, to traditional common law torts as expressed in, e.g., Restatement (Second) of Torts § 652. Therefore, case law from other jurisdictions discussing common law torts may be helpful, as Wisconsin case law is not extensive.

    2. Text of the Statute(s)

      Wis. Stat. § 995.50(2)

      (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.

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  2. Intrusion of Seclusion

    1. Introduction

      Wisconsin law regarding intrusion upon seclusion generally follows the typical common law elements (intentionally intrudes, physically or otherwise, upon the solitude or seclusion or private affairs or concerns of another if the intrusion would be highly offensive to a reasonable person), with one important exception: “intrusion” is limited to a physical space. Thus listening on phone calls and reading mail do not appear to qualify under Wisconsin law, although doing so by entering a private area can trigger liability. In addition, there is authority that hacking into an email account constitutes accessing a “place” under the statute.

    2. Cases

      1. 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: Because the plaintiff failed to allege an intrusion into a “private place” or “private belongings,” the court granted the defendant's motion for summary judgment on the intrusion claim.

      2. Hillman v. Columbia Cnty, 164 Wis.2d 376, 474 N.W.2d 913 (Wis. App. 1991)

        • Procedural Posture: Plaintiff appealed grant of summary judgment to defendant

        • Law: Wis. Stat. § 995.50(2)(a) and (c); also constitutional right to privacy, and negligent and intentional infliction of emotional distress.

        • Facts: Inmate brought action against county and jail employees alleging that jail employees had disclosed results of his human immunodeficiency virus (HIV) test.

        • Outcome: Summary judgment granted in part and denied in part. With regard to the intrusion claim, the court held that even though medical records could be intruded upon under the Restatement definition of intrusion, they did not fit under the definition of “place” in the WI statute.

      3. Fischer v. Mt. Olive Lutheran Church, 207 F. Supp. 2d 914 (W.D. Wis. 2002)

        • Procedural posture: Defendant’s motion for summary judgment

        • Law: Intrusion under § 995.50(2), state and federal wiretap claims; defamation (additional claims dismissed by stipulation)

        • Facts: Plaintiff youth minister alleged that church employees had improperly listened in on a counseling conversation conducted while he was in an office at the church, and, as a result of misinterpreting what they heard, spread false stories about him and accessed his email to plant incriminating evidence.

        • Outcome: Based on the circumstances, the concept of “private belongings” may include a person’s email account. If the facts showed that a reasonable person would have considered plaintiff’s email “private,” plaintiff may have a claim for “intrusion.” The court denied the defendant’s motion for summary judgment to conduct more fact discovery as to whether a reasonable person would have considered plaintiff’s email to be “private.”

      4. Muwonge v. Eisenberg, No. 07-C-0733, 2008 WL 753898 (E.D. Wis. Mar. 19, 2008)

        • Procedural Posture: Defendant’s motion to dismiss

        • Facts: Attorney brought a claim for invasion of privacy under Wisconsin’s Privacy statute (Wis. Stat. § 995.50) and alleged that defendants invaded his privacy by entering his office, opening his private mail, and removing his person items.

        • Outcome: The court noted that the statute protects against invasion of privacy of geographic locations, and found that based on the facts, plaintiff adequately alleged that he had a reasonable expectation to privacy in his office. The court therefore denied the defendant’s motion to dismiss on the invasion of privacy count. An expectation of privacy in one’s office is a fact-specific issue, but could rise to the level where defendant’s conduct could be wrongful.

        • Special Notes: The court notes in dicta that opening mail cannot be an intrusion under Wisconsin’s statute, which applies only to physical places.

    3. Additional information

      See Invasion of Privacy by Using or Obtaining E-Mail or Computer Files, 68 A.L.R.6th 331; The Rights of Publicity and Privacy § 6:132, Wisconsin-Overview of Wisconsin law.

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  3. Appropriation

    1. Introduction

      Appropriation (called misappropriation in many jurisdictions) involves the use of a person’s name or image for promotional purposes, without consent.

      It is closely related to the tort of Right of Publicity, but Wisconsin torts have not considered whether the common law tort continues in light of the Right to Privacy statute.

    2. Cases

      1. Habush v. Cannon, 346 Wis. 2d 709 (Wis. Ct. App. 2013)

        • Procedural Posture: The trial court granted summary judgment to the defendants and the plaintiffs appealed.

        • Law: Wis. Stat. § 995.50(2)(b)

        • Facts: Plaintiffs filed suit for invasion of privacy after defendants bid on plaintiffs’ names in internet search engine ads and linked search results for plaintiffs’ names to defendants’ website. Plaintiffs brought suit under § 995.50(2)(b) and argued that the defendants “used” plaintiffs’ names for advertising purposes without plaintiffs’ consent in violation of the statute.

        • Outcome: The appellate court affirmed the trial court’s grant of summary judgment in favor of the defendants because the defendants’ “use” of plaintiffs’ names was not a “use” contemplated by the statute, which requires the “use” of the name or image as a visible part of some sort of promotion or product.

        • Special Notes: Although in this case the plaintiff was unsuccessful in bringing his claim, the court’s decision as to “use” was highly fact-specific, and a WMC victim may be able to assert a claim if the “use” of her name or image was a visible part of a promotion or product.

      2. Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873 (E.D. Wis. 2009)

        • Procedural Posture: Defendants moved to dismiss.

        • Law: Violation of plaintiff’s common law right of privacy

        • Outcome: Trial court dismissed misappropriation/ right of publicity claims because the alleged conduct did not implicate the Lanham Act and it declined to exercise supplemental jurisdiction over pure state law claims.

        • Facts: Plaintiff brought an action in federal court after discovering that online searches engine queries of her name produced links to pornographic websites, online pharmacies promoting sexual dysfunction drugs, and an adult-oriented online dating service. Plaintiff alleged that the defendants knowingly and intentionally used her name on the internet without authorization in violation of both federal and state law. The court dismissed plaintiff’s federal claims and declined to exercise jurisdiction over the state law claims. Defendant Yahoo! also claimed it could not be held liable due to a federal law protecting information content providers. The federal court’s ruling suggested that a right to publicity claim would fall under an exception to this information content provider protection, but declined to rule as to whether Plaintiff’s action properly stated a right to publicity claim.

        • Special Notes: As the court notes, Wisconsin’s treatment of appropriation claims as right to publicity claims may affect whether or not they fall under an exception to 47 U.S.C. 230, which otherwise provides immunity for websites hosting the content of others.

    3. Practice Pointers

      The relevant section of Wisconsin’s statute, 995.50(2)(b) was copied verbatim from New York’s privacy law, and thus interpretations of that law, and applicable exceptions, may be instructive.1

    1. See N.Y. Civ. Rights Law §§ 50, 51. 

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  4. Public Disclosure of Private Facts

    1. Introduction

      Public disclosure of private facts cases are generally highly fact-specific and the determinations of what is “private” and “publicly” disclosed are typically questions for a jury. The cases involving the most obvious publication, via television, indicate that a claim is difficult where the plaintiff was present and involved in the disclosure (even if it did not go as planned) and did not at the time object.

    2. Cases

      1. 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: With regard to the disclosure claim, the court agreed that medical records and information are generally considered private facts, but held that the issue of whether the facts about plaintiff were public, given her voluntary disclosure of them to others, was for the finder of fact. A reasonable person could find that the facts were private even though plaintiff had disclosed them to others. In addition, offensiveness was also a matter for the jury.

      2. Hillman v. Columbia County, 164 Wis.2d 376, 474 N.W.2d 913 (Wis. App. 1991)

        • Procedural Posture: Plaintiff appealed grant of summary judgment to defendant

        • Law: Wis. Stat. § 995.50(2)(a) and (c); also constitutional right to privacy, and negligent and intentional infliction of emotional distress.

        • Facts: Inmate brought action against county and jail employees alleging that jail employees had disclosed results of his human immunodeficiency virus (HIV) test.

        • Outcome: With regard to the disclosure claim, the court liberally construed the complaint and found that the plaintiff had stated the requisite “publicity” by pleading that the photo had been shared with people within the jail.

      3. Pachowitz v. Ledoux, 2003 WI App 120, 265 Wis. 2d 631, 648, 666 N.W.2d 88 (Wisc. App. 2003)

        • Procedural Posture: Plaintiff prevailed at trial; defendants appealed the denial of their motion to change the jury’s answer.

        • Law: Invasion of privacy and defamation

        • Facts: Plaintiff was taken to the hospital for an overdose. One of the EMT’s disclosed the incident to a woman he knew to be a friend and co-worker of plaintiff’s, who later disclosed the information to other staff at the plaintiff’s place of work.

        • Outcome: Trial court’s ruling upheld. The 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. Rather, whether such 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. Here, where defendant was on notice that plaintiff did not want to be treated at the hospital where she worked, and that the friend/co-worker was a gossip, it was not unreasonable for the jury to find the publicity element met.

      4. Albertson v. Tak Communications, Inc., 1989 WL 129270 (Ct. App. Aug. 15, 1989)

        • Procedural Posture: Appeal of summary judgment dismissing plaintiff’s claims.

        • Facts: A television news crew interviewed plaintiff regarding her religion’s belief that smoking marijuana was a sacrament. The report also showed a woman’s hands rolling a marijuana cigarette. Plaintiff alleged the broadcast conveyed a false and defamatory impression of her casually and arrogantly rolling a marijuana cigarette and that the film crew’s alleged misrepresentation that they were not filming her rolling the cigarette was a violation of her privacy.

        • Outcome: Affirmed. The appellate court agreed with the trial court that because the plaintiff failed to show an injury to her reputation, she could not bring claims for defamation or invasion of privacy. Regardless of the alleged misrepresentation of the film crew, plaintiff could not recover where she could prove no damage to her reputation.

      5. Olson v. Red Cedar Clinic, 273 Wis. 2d 728, 681 N.W.2d 306 (Ct. App. 2004)

        • Procedural Posture: Appeal of summary judgment dismissing plaintiff’s claims.

        • Facts: Defendant counseling clinic released son’s records to son’s school psychologist. The records contained personal information about the mother that she had specifically not consented to release.

        • Outcome: Affirmed. The facts were not publically disclosed when they were only disclosed to one person, the school psychologist. Public disclosure “means that “the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” (citing Restatement § 652D comment a)

      6. Smith v. Dep’t of Corrections, 2005 WL 2449841 (E.D. Wis. Sept. 30, 2005)

        • Procedural Posture: Defendants’ motion for summary judgment.

        • Facts: Plaintiff reported sexual assault to co-worker and was then interviewed as part of employer’s investigation into allegations. One of the defendant investigators disclosed the sexual assault to “probably everybody” on staff at the employer and plaintiff alleged invasion of privacy resulting from public disclosure of private facts.

        • Outcome: Defendants’ motion for summary judgment granted because there was no “publication.” Publication may occur where the matter is made public by communicating to the public at large or where a “special relationship” exists between the plaintiff and the “public” to whom the information has been disclosed. The court found that plaintiff failed to prove that the information was disclosed to the public at large where the information was shared only with people involved in the investigation.

      7. Howell by Goerdt v. Tribune Entertaining Co., 106 F.3d 215 (7th Cir. 1997)

        • Procedural posture: Appeal from defendant’s successful motion to dismiss.

        • Facts: 16-year old went on national talk show with her step-mother and other members of the family. The broadcast degenerated into name-calling, and the step-mother at one point read from a police report on the step-daughter that indicated the step-daughter had “engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud behavior.” The step-daughter responded on the show, and did not ask that the reference be deleted in the 2 weeks before the show aired. She eventually sued the broadcast company for invasion of privacy.

        • Outcome: Affirmed.

        • Special Notes: The Seventh Circuit opinion, by Judge Posner, is not strictly binding on Wisconsin state courts, but contains a number of interesting points.

          • Name-calling probably does not amount to disclosure of private facts that concern the privacy tort. Those usually concern “nudity, sex, or serious but hidden physical or psychiatric problems,” although the court notes that Wisconsin’s law may be broader (citing Zinda, which involved allegations that the plaintiff was fired for lying on a job application).

          • Even if the disclosure had involved public facts, the suit would fail because the disclosure in response to plaintiff’s own behavior was privileged. Plaintiff had in essence prompted the disclosure by calling her step-mother a liar, and thus making her own character for truth-telling relevant. She “may not hide behind Wisconsin's privacy law and from that shelter pelt her stepmother with defamatory accusations with impunity.”

          • Although plaintiff was a minor at the time, the court finds that at 16, she was old enough to understand that she was appearing on a national tv show designed to elicit this kind of behavior.

          • The production company can benefit from the step-mother’s privilege because 1) it was not involved directly in the disclosure nor was it requested to remove it from the broadcast; and 2) because if plaintiff “can broadcast her own accusations to millions, she should not be able to block her stepmother from broadcasting a reply to those accusations to the same audience.”

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  5. Wis. Stat. § 968.31 – Electronic Eavesdropping and Recording (“Electronic Surveillance and Control Law”)

    1. Introduction

      As a general matter, Wisconsin § 968.31 criminalizes the intentional interception, use, disclosure, or alteration of any wire, electronic, or oral communication. Any person whose wire, electronic or oral communication is intercepted, disclosed, or used in violation of this criminal statute may bring a civil suit. However, Wisconsin is a one-party consent state, meaning that communications can be recorded even if one party does not know about the recording, so long as the recording party does not intent to commit a crime or tort with the conversation. Both civil and criminal actions are authorized.

    2. Text of the Statute(s)

      Wis. Stat. § 968.31 is available here.

      (1) Civil Cause of Action: Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of ss. 968 to 968.37 shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose, or use, the communication, and shall be entitled to recover from any such person:

      (a) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

      (b) Punitive damages; and

      (c) A reasonable attorney’s fee and other litigation costs reasonably incurred.

    3. Cases

      1. Desnick v. Am. Braod. Cos., Inc., 44 F.3d 1345 (7th Cir. 1995)

        • Procedural Posture: Appeal of defendants’ successful motion to dismiss.

        • Law: Among others, Wis.Stat. § 968.31(2)(c).

        • Facts: An ophthalmic clinic and two of its surgeons brought, among other claims, claims for illegal wiretapping and defamation under Wisconsin law against a television network and others involved in an investigative-reporting broadcast that suggested the ophthalmic clinic’s doctors improperly recommended cataract surgery and engaged in other fraudulent behavior. The district court dismissed the plaintiffs’ complaint.

        • Outcome: The Seventh Circuit affirmed the trial court’s dismissal of plaintiffs’ electronic eavesdropping claim because although the broadcast was allegedly defamatory, there was no evidence that the recordings were made for the purpose of accomplishing that tort. Federal and state wiretapping statutes only provide for liability where the defendants make electronic recordings without the plaintiff’s consent in order to commit a crime or a tort. There was no evidence that the investigative reporting was undertaken in order to defame the plaintiffs or commit a crime.

      2. Terry v. Journal Broad. Corp., 351 Wis. 2d 479 (Wis. Ct. App. 2013)

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

        • Facts: A news station aired a story stating that the plaintiff local wedding videographer was running a “scam” and not providing products she promised to consumers. The broadcast included a recording of the plaintiff stating “end of interview,” putting her hand over the camera, and making a throat cutting gesture, as well as subsequent footage of the plaintiff’s son forcibly removing the news station’s staff from the plaintiff’s home. The plaintiff brought suit against the news station’s staff for, among other things, invasion of privacy, libel, and misappropriation under Section 968.41. The circuit court dismissed these claims on defendants’ motion for summary judgment, and plaintiff appealed.

        • Outcome: The Wisconsin appellate court affirmed the trial court’s grant of summary judgment in favor of the defendant where the plaintiff had no reasonable expectation that a news crew would not record her despite her request that they cease recording where plaintiff knew that the news crew was recording her.

        • Special Notes: This case suggests that if a subject knows she is being recorded, there is no violation of this statute even if a party indicates she does not wish to be recorded any longer.

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  6. Wis. Stat. § 813.125 – Civil Harassment

    1. Introduction

      A WMC victim may seek a restraining order where he or she is continually harassed by an individual, regardless of their relationship with that individual (e.g. regardless of whether they are “household members”).

    2. Summary of Statutes

      1. Types of harassment

        
Restraining orders are available for the following kinds of harassment:

        • Striking, shoving, kicking or otherwise subjecting another person to physical contact; abuse, sexual assault, or stalking; or attempting or threatening to do the same; or

        • Engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.

      2. Types of orders

        • A temporary order may be granted by a judge or circuit court commissioner if s/he finds reasonable grounds to believe that the abuser has intentionally harassed or intimidated the victim. The temporary order lasts for 14 days or until the full court hearing. Notice does not need to be given to the perpetrator before the judge may issue the temporary restraining order.

        • A final harassment restraining order or injunction, can be granted only after a full court hearing where the victim and abuser both get a chance to tell their sides of the story. If granted, a final harassment restraining order may last for up to 4 years.

      3. Process

        Petitioner files a petition identifying the aggressor and the conduct. There are forms available for filing at county courthouses. A judge or commissioner may issue a temporary restraining order upon filing of the petition, which is then served on respondent. Otherwise the petition is served on respondent and a full court hearing is held to assess the need for a permanent injunction.

      4. Effect

        Either order may order the perpetrator to avoid contacting or causing any person other than a party’s attorney or law enforcement officer to contact the victim without the victim’s consent, to case or avoid the harassment of another person, and/or to avoid the victim’s residence.

    3. Cases

      1. Welytok v. Ziolkowski, 752 N.W.2d 359 (Wis. App. 2008)


        • Procedural Posture: Appeal from order of injunction.

        • Law: Wis. Stat. § 813.125

        • Facts: Defendant lost in the bidding on a piece of property successfully purchased by plaintiff. In response, defendant yelled at plaintiff in a bar, called reporters and told them she was changing her name to avoid her past (a disciplinary action eight years before), sent various obnoxious emails to her husband, boss and colleagues, and showed up at an event she was promoting with flyers about the disciplinary action. Plaintiff filed for and was granted an injunction against the harassment.

        • Outcome: The appellate court affirmed the injunction. While recognizing that it was required to be deferential to the trial court, the appellate court also found Defendant’s arguments lacking on the merits.

        • Special Notes:

          • Appeals from decisions to grant or deny injunctions are difficult to win because appellate courts heavily defer to the trial court’s decision.

          • The legitimate purpose that excuses what might otherwise be harassing conduct must exist at the time of the incident. The court rejected respondent’s attempts to “manufacture a legitimate purpose” after the fact.

          • The court had no difficulty defining conduct as harassment even though there was only one contact directly between defendant and plaintiff (the others were various attempts to embarrass her with others). Thus, a defendant’s communications with third parties still constitute harassment against the victim.

      2. Elston v. Zoellick, 351 Wis. 2d 681 (Wis. Ct. App. 2013)

        • Procedural Posture: Appeal from an order of injunction.

        • Law: Wis. Stat. § 813.125

        • Facts: Defendant was a patron at a restaurant at which plaintiff worked, and began frequenting the restaurant nearly every day plaintiff worked and inquired when she was not his server. He began to drive past her home, and inquired about plaintiff’s dating life. He followed her to her new job, and at one point, drove past her place of work six times in a 30 to 40 minute period. Plaintiff filed for and was granted an injunction, and the circuit court imposed geographical restrictions on defendant. Defendant argued on appeal that the geographic restrictions were too broad because a large swathe of his home town and a nearby town were off-limits to him.

        • Outcome: The appellate court affirmed the injunction. It found that defendant had repeatedly demonstrated that he would not abide by narrowly tailored orders, and in fact, had violated previous injunctions, and therefore a significant geographic restriction was necessary to provide plaintiff with a margin of territorial safety.

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