Invasion of Privacy
The discovery of and use of electronic and digital information has exploded. Emails. Text messages. Tweets. Facebook. Dating Sites. Social Media sites. YouTube, Vimeo, and other video boards. Blogs and vlogs. Comment sections of articles and posts. Statements, opinions, “facts,” pictures, images – information is everywhere.
The discovery and disclosure of electronic information is sometimes obtained without authorization and may give rise to a civil action for Invasion of Privacy as well as other civil torts like Intentional Infliction of Emotional Distress. Access to unauthorized electronic information may also violate State and Federal law.
Invasion of Privacy Claims
North Carolina recognizes invasion of privacy claims for appropriation of one’s picture or name and invasion of a person’s private affairs or seclusion. (See Hall v. Post, 323 N.C.259 (1988).) A person must show that there was an unauthorized use or prying or intruding in the private affairs or seclusion of a person that would be objectionable to a reasonable person. For example, posting pictures of your spouse exposing her chest at Mardi Gras would not be an invasion of privacy as the ‘exposure’ was in a public place at a public event. On the other hand, posting naked pictures of your spouse during a private intimate marital moment would likely meet the definition. Judging by a NC State Senator’s comment on the senate floor, “I’d rather be shot in the leg than have naked pictures posted of me online,” it is likely that the disclosure of private marital images would be objectionable to a reasonable person. Accessing a person’s mobile phone or computer without authorization can also give rise to invasion of privacy claims.
Intentional Infliction of Emotional Damage
In addition to privacy claims, a person who has been victimized by another can seek civil damages for emotional damage. This is known as “intentional infliction of emotional distress.” As the name implies, this action must be intentional (not accidental or negligent), and the bad actor must pay money damages for injuries resulting from his or her conduct or actions regardless of whether the bad actor could have foreseen the damage caused. The bad actor’s conduct must be a) extreme and outrageous, and b) intending to cause severe emotional distress, and c) did cause severe emotional distress (actual injury).
Situations where invasion of privacy claims have been invoked include Facebook posts of confidential and private information; spyware installed in bedrooms and bathrooms; use of drones with GoPro cameras.
North Carolina has just passed a Revenge Porn law which will take effect in December, 2015. North Carolina is one of 26 states (and counting; 11 states have bills pending as of this post) that criminalizes revenge porn. Of the 26 states with revenge porn criminal penalties, North Carolina is one of only 9 that have civil remedies. For every day the illegal post is online, civil damages accrues at $1,000 per day or $10,000 whichever is higher, plus punitive damages, plus attorney fees.
It is illegal in North Carolina to use a computer or computer network without authority with the intent to a) temporarily or permanently remove, halt, or disable any computer data, programs, or software; b) cause a computer to malfunction; c) alter or erase any data, programs, or software; or, d) make or cause to be made an unauthorized copy of any computer data, programs, or software.
Cyberstalking by Installation of GPS
North Carolina’s cyberstalking law has been recently modified to make it a crime to place a GPS or other tracking device on another person’s motor vehicle without consent. The law, effective December 1, 2015, makes it a crime to: knowingly install, place, or use an electronic tracking device without consent, or cause an electronic tracking device to be installed, placed, or used without consent, to track the location of any person. There are a number of exceptions to this prohibition including one for private investigators. Hence, while it may be illegal for a spouse to place a GPS tracking device on the other spouse’s car, but it may be acceptable to engage the services of a private investigator who can permissibly install the device as part of an investigation. There is also an exception to allow parents to place a tracking device on a child’s vehicle.
With the rise of the many forms of electronic expression, more and more clients are seeking advice about Defamation & Slander claims. Defamation arises from a printed statement. Slander is a verbal statement. Both are civil claims that may result in the payment of money to compensate for damages suffered.
To be defamatory, a statement must be published to a third person and the statement must be about the person complaining (the plaintiff). The statement must sufficiently identify the plaintiff; the statement must be false; and must have caused damage to the plaintiff’s reputation. Defenses to defamation include: truth; consent; and privilege.
Libel is a defamatory statement recorded in writing or in some other permanent recorded form (video, for example). Libel can be defamatory on its face (libel per se), as in “my spouse is addicted to heroin and meth and was fired from six jobs and had sex with the family dog.” A statement can also be defamatory if a published statement, considered together with innuendo and normal explanatory circumstances, becomes false, injurious, and damaging. Such a statement might be something like, “my spouse and Ray Rice have a lot in common.” This category of defamation is called “libel per quod” and requires an additional element of proving there has been an injury to reputation (“special damages”). In North Carolina, there is a defamatory middle-ground, where a statement is susceptible of two meanings, one defamatory and the other not, but a reasonable reader would interpret the statement in the defamatory sense.
Defamatory statements can be verbal. This is Slander. If a defamatory spoken statement is about a person’s business or profession; or alleges a person has a foul or loathsome disease; or alleges a person is guilty of a crime of moral turpitude (dishonesty; behavior contrary to community moral standards; depraved behavior), such statements can be considered slander per se and the requirement of proving damage to reputation is presumed. Other types of statements may be slanderous but if a statement does not fall within one of these 3 categories, it requires a proof of injury to reputation.