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.