There is no statutory right to privacy in Michigan. The tort of invasion of privacy is based on a common-law right to privacy, and is said to protect against four types of invasion of privacy: 1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; 2) public disclosure of embarrassing or private facts; 3) publicity that places the plaintiff in a false light in the public eye; and 4) appropriation for the defendant’s advantage of the plaintiff’s name or likeness.
1) Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs:
- The existence of a secret and private subject matter;
- A right possessed by the plaintiff to keep that subject matter private; and
- The obtaining of information about that subject matter through some method objectionable to a reasonable person.
2) Public disclosure of embarrassing facts:
- The disclosure of information,
- that is highly offensive to a reasonable person, and
- that is of no legitimate concern to the public.
3) Publicity that places plaintiff in a false light in the public eye:
- Defendant broadcast to the public in general, or a large number of people;
- information that was unreasonable and highly objectionable by attributing to the plaintiff characteristics, conduct, or beliefs;
- these were false and placed the plaintiff in a false position;
- defendant knew or acted in reckless disregard to the falsity of the matter and the false light in which the plaintiff would be places.
4) Appropriation, for the defendant’s advantage of the plaintiff’s name or likeness.
- Plaintiff has a pecuniary interest or significant commercial value in her identity.
- Defendants engaged in commercial exploitation of plaintiff’s identity.
Doe v. Mills, 536 N.W.2d 824 (Mich. App. 1995)
- Procedural Posture: Plaintiffs brought action for invasion of privacy and intentional infliction of emotional distress and the circuit court granted summary judgment. Plaintiffs appealed.
- Law: Invasion of privacy (intrusion on seclusion and public disclosure of private facts).
- Facts: Defendants displayed the real names of plaintiffs on large signs held up for public view outside of abortion clinic.
- Outcome: The court found that plaintiffs sufficiently alleged public disclosure of embarrassing private facts making summary judgment improper, but affirmed summary judgment regarding intrusion upon seclusion finding the plaintiffs did not sufficiently allege defendants obtained the information by an offensive intrusion.
Porter v. Royal Oak, 542 N.W.2d 905 (Mich. Ct. App. 1995)
- Procedural posture: Plaintiff alleged that defendants gave the media a memo that placed him in a false light; trial court granted summary judgment of plaintiff’s claims; plaintiff appealed.
- Law: false light invasion of privacy.
- Facts: plaintiff, a police officer, alleged that defendant police department communicated to the media false information in providing them a memorandum regarding plaintiff’s disciplinary actions.
- Outcome: The court of appeals affirmed summary judgment for defendants, holding that because the information contained in the memorandum was true, plaintiff’s false light claim could not be sustained. The court further held that to the extent the plaintiff contended the media’s use of the information created a false public impression of plaintiff, defendants could not be held liable for the characterization of truthful information by the media.
Arnold v. Treadwell, No. 283093, 2009 WL 2136909 (Mich. Ct. App. July 16, 2009)
- Procedural Posture: Plaintiff appealed order granting summary disposition to defendants regarding invasion of privacy claim.
- Law: appropriation (of the plaintiff’s name or likeness).
- Facts: Plaintiff, a model, entered a contractual agreement wherein defendants conducted photo shoot in return for the right to post her pictures on specified websites. However, defendants also published her photo on other websites and submitted her photos to magazines, not specified in the contract.
- Outcome: The plaintiff claimed the trial court erred by improperly analyzing whether her image had significant commercial value because commercial value is not required for recovery at common law. However, the appeals court disagreed and found the trial court did not err in evaluating the commercial value, although it did conclude that this is a question of fact for which plaintiff presented sufficient evidence to survive summary disposition.
- Special Notes: The Court followed a line of authority, not common in all states, that appropriation is tied to a property right, and therefore a plaintiff must demonstrate a pecuniary interest in their name or likeness that is of significant commercial value.
Hackler v. Austin, 17-0137-NO, Macomb County Circuit Court (2017)
- This media-reported case resulted a $600,000 default judgment for a Michigan victim after her ex-boyfriend posted a video on Facebook of the two of them having sex.
- Law: Invasion of privacy (intrusion upon seclusion and disclosure of private embarrassing materials) and intentional infliction of emotional distress. The plaintiff also alleged assault, battery, and false imprisonment because the defendant grabbed the plaintiff, threw her into a chair, and physically restrained her after she discovered the videos on the defendant’s computer and attempted to delete them.
- Outcome: The court awarded a default judgment of $600,000 in the plaintiff’s favor, finding the defendant engaged in “intentionally tortious and malicious acts against Plaintiff.”1 The court based the judgment on plaintiff’s claims of intentional infliction of emotional distress, intrusion upon seclusion, along with plaintiff’s claims of assault, battery, and false imprisonment. The court also divested the defendant of copyrights to “all photographs or videos in Defendant’s actual or constructive possession which depict Plaintiff in a partially or fully nude state or depict Plaintiff in a sexual manner,” and awarded the plaintiff these copyrights. Id. Lastly, the court ordered the defendant to immediately destroy and not publish “all photographs or videos that depict Plaintiff in a partially or fully nude state or which depict Plaintiff in a sexual manner” and ordered the defendant to remove all such photographs and videos from the Internet. Id.
- Special Note: Where a plaintiff does not have similar claims for assault, battery, and false imprisonment, it may be less likely that a plaintiff will recover as large of a judgment.
- In another media-reported case brought by the same attorney involved in the Hackler case, a Michigan victim was awarded $500,000 after her ex-boyfriend posted nude photographs of her on multiple internet sites.2 The claims for this case likely involved invasion of privacy, although media reports do not specify.
- For false light, courts require a showing of knowledge of falsity or reckless disregard of the truth.3
- Appropriation of name or likeness requires a showing that plaintiff’s name or likeness holds significant commercial value. As a result, an appropriation claim may be difficult for most WMC victims in Michigan.
- 1. Default Judgment Against Aaron Michael Austin, Hackler v. Austin, 17-0137-NO, Macomb County Circuit Court (April 11, 2017).
- 2. Due to privacy concerns, the identities of parties were not disclosed to the press, and thus the complaint has not been located.
- 3. Cantrell v. Forest City Pub. Co., 419 U.S. 245, 249, 95 S. Ct. 465, 469, 42 L. Ed. 2d 419 (1974).