Privacy Still Matters
Our privacy rights are our rights to have other individuals, corporations, or government organizations refrain from unlawfully interfering with our lives. These rights are essential to living free, autonomous lives in the United States.
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.
Louis D. Brandeis, Olmstead v. United States, 277 U.S. 438, 478 (1928)(dissenting).
Our firm litigates privacy law claims arising from violations of state and federal statutes and common law. We also help our clients with a variety of other legal services, including writing cease and desist letters, confidentiality agreements, non-disclosure agreements, privacy agreements, and privacy breach notices. Our transactional services help our corporate and small business clients create, manage, and enforce their privacy agreements, policies, and regulations.
Our firm uses state and federal statutes as well as common law principles to litigate privacy claims for our clients in state and federal trial courts. We also look for opportunities to help state and federal courts establish new common law principles or to change outdated common law principles via appellate litigation.
Revenge Porn (Colorado Only)
In 2014, Colorado enacted some of the nation’s toughest revenge porn laws. The laws give revenge porn victims a private cause of action and require mandatory damages awards when plaintiffs prove their revenge porn claims. This makes it easier for plaintiffs to recover actual damages than they could when they were limited to using Colorado’s common law invasion of privacy claims. The new laws also give revenge porn victims enforceable intellectual property rights in images that depict their private intimate parts.
“Revenge porn” is sexually explicit media, including photos or video, shared online through the use of social media like Facebook and e-mail, without the consent of the person in the picture.
When images and videos are shared outside the intimacy and privacy of a relationship for money or harassment, the effects can be long-term and far-reaching, including severe emotional distress, lowering one’s reputation in their community, and even losing a job.
Colorado law provides both a criminal charge and private right of action for persons that have had their intimate photos or videos shared online by those that wish to harass or inflict emotional stress on them without their consent or when the images were reasonably expected to be kept private.
Individuals in Colorado also have an intellectual property right of authorship in the commercial use of intimate pictures of themselves. Those that profit from posting another’s intimate pictures or videos without their consent or when there was a reasonable expectation that the images were intended to be kept private are also liable under Colorado law.
If someone has shared intimate pictures or videos of you online without your permission, call us. We help clients with revenge porn cases to have the photos or video removed and obtain judgments against the harassing party or copyright infringer. Victims of revenge porn are entitled to a court-ordered removal of the images or video, a minimum $10,000 in damages, and reasonable attorney’s fees.
Intrusion upon Seclusion
When someone intentionally and offensively invades your private space or meddles in your private affairs or concerns, an invasion of privacy called “intrusion upon seclusion” has occurred.
This type of invasion of privacy can take place when another person intentionally or defiantly trespasses onto your property, such as a hotel room or other location where you have secluded yourself. It can also occur when someone uses intrusive camera or audio equipment to record private images or sounds that a reasonable person would not want to be recorded. It may also occur if someone, without lawful authority, accesses your private letters, mail, medical records, financial records, or psychological counseling records.
Intrusion upon seclusion claims also protect the public online. A claim for intrusion upon seclusion can include someone reading your private e-mails or messages on Facebook without your permission. Cases where someone logs into your online bank account to read through your statements can also give rise to a claim for intrusion upon seclusion.
If you have a viable intrusion upon seclusion claim, you may be able to recover damages for emotional distress, injury to reputation, as well as punitive damages, if the intrusion is particularly shocking. If the other person profits from the intrusion, such as selling the photographs to a tabloid magazine, you may also be able to recover the profits.
For most people, the first thing that comes to mind when they hear “wiretap” is someone listening to their telephone calls. But state and federal law protects more than phone conversations. Under Colorado, Arizona, and the federal statutes, it is illegal for someone to intercept any wire, oral, or electronic communication through the use of any mechanical or electrical tool. To be an illegal act of wiretapping, the interception must occur simultaneously with the communication. For example, listening-in on a live telephone conversation or watching someone’s private chatroom conversation is an “interception,” but accessing stored e-mail is not.
The federal “Wiretap Act” (the “Act”) applies to communications that go across state lines. Federal violations allow for a mandatory award of $100 a day for each wiretap violation and a minimum of $10,000 in damages, whichever is greater. For Colorado and Arizona law, the communications must occur within each respective state. Both federal law and state laws in Colorado and Arizona allow for lawful wiretapping in cases where one of the parties to the conversations consents to have the conversations recorded or wiretapped. Arizona creates a mandatory award of $100 a day for each wiretap violation and a minimum of $10,000 in damages.
Appropriation of Name or Likeness
You have a right to control the use of your name of likeness under both Colorado and Arizona law. A claim for appropriation of name or likeness may be made if the use of your name or likeness occurs without your permission. The use of your name or likeness does not have to be for a commercial benefit and your identity does not have to have commercial value.
Appropriation claims are not limited to celebrities. As seen in the television show and documentary, “Catfish,” there are numerous fake online profiles where someone has created a persona using another’s pictures or even their entire identity (often obtained on defunct Myspace profiles) to interact with other computer users online. If someone has created a fake Facebook or Twitter account using your pictures or name, then you could have a claim for appropriation.
Right of Publicity
The right of publicity is the right to control the commercial use of your identity. Courts will look to whether a party used the injured party’s identity without their permission for their commercial advantage. The violation of a person’s right of publicity and unauthorized use of their likeness—particularly in the case of celebrities whose very names and faces generate income—dilutes the value of their identities and deprives them from the compensation they are due.
A right of publicity violation can occur when a company uses video footage or photos of a person, without their permission, to advertise a product. This might include the company using pictures of someone found on Instragram with their product, including wearing a shirt with their logo or consuming a brand of food. Violations are not limited to video recordings or photographs. They can also occur when advertisements use vocal impersonations of celebrities. However, the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental is generally permissible.
Arizona also has two statutes recognizing a right of publicity for soldiers, but no corresponding statute for civilians. These statutes recognize a civil cause of action for infringement of the right of publicity for any soldier, alive or deceased.
Breach of Confidentiality
Most of us entrust certain professionals, businesses, or government agencies with sensitive, sometimes embarrassing private information. We trust doctors, dentists, nurses, psychiatrists, psychologists, and therapists with sensitive private health information. We trust banks, credit card companies, credit unions, schools, employers, and government employees with our birth dates, social security numbers, private email addresses, private phone numbers, or private residential addresses. Relying on their privacy policies or the privacy sections in their online contracts or agreements, we trust companies who sell goods and services via the World Wide Web with bank routing numbers and credit card numbers.
Most of the time, the professionals or organizations we trust with our personal identifying and private information safeguard it responsibly. Indeed, some of us would refuse their services if they did not promise, in writing, not to disclose our private information without a court order or some other legal justification, such as a search warrant. Sometimes people or organizations fail to keep our information private despite their written or implied promises to do so. Our sensitive private information ends up on the Internet. It ends up in public records. It ends up in the hands of identity thieves. When this happens, the people or organizations who negligently, knowingly, or maliciously disclosed our private information even though they had a duty to keep it confidential may be held liable for breach of confidentiality or breach of confidence. Third parties that encouraged or substantially helped them breach their duty of confidentiality to you may also be held liable for aiding and abetting the breach.
False Light (Arizona Only)
Arizona courts recognize that you have a right to protect yourself from unflattering or unwanted publicity that portrays you in a false light. If someone makes public false or misleading information about you that creates an offensive or objectionable false perception, then you could have a claim for false light invasion of privacy in Arizona.
The information does not have to be false or result in actual harm. It must, however, falsely, unfairly, or inaccurately depict you in an offensive way, either by words, video, or pictures.
False light invasions of privacy often concern untrue implications, such as when an article about eating disorders is illustrated with a stock photo of a model who does not have an eating disorder. Other claims might involve a misleading caption that describes a bystander in a photo as a “participant” in looting during a riot or film footage of someone in public combined with commentary about drug users when they have no history of using drugs.
Public Disclosure of Private Facts
Public Disclosure of private facts occurs when someone releases your sensitive or embarrassing personal information without your permission or consent. To prove this claim, you must show that the private facts were of no legitimate concern to the public, but were nonetheless disclosed to the public and the person sharing your information recklessly disregarded the private nature of the information. Embarrassing facts that are already public, such as unsealed judicial records or arrest records, generally do not give rise to viable public disclosure of private facts claims.
Courts in Colorado and Arizona have recognized that certain private details about people, even though true, may be “off limits” to the press and public. This might include detailed information a private person’s sexual activities, private and intimate photographs, medical condition, educational records, or tax records. Other protected information includes social security numbers, unlisted private phone numbers, private residences, and private email addresses.
Sometimes, people will try to use the Internet and certain online account settings to get away with posting another person’s private information. However, even if someone posts information to only their friends on Facebook or in a private online forum to a group of users, the disclosure may still be sufficiently public to create a claim for public disclosure of private facts.
Contact us if you need privacy agreements, letters, policies, or regulations drafted for yourself or your business that are not described below.
Cease and Desist Letters
When you simply want another person to stop certain behavior or for them to remove material, cease and desist letters can accomplish the goals of litigation at a fraction of the time and cost.
A Cease and Desist letter may be appropriate when your business or reputation in a community has not been affected yet, but you want someone to remove private information or pictures that were posted on Facebook or elsewhere on the Internet. Other times, you could just want the person to stop sharing your private information with third-parties, like your neighbors or family. In those cases, a letter is often enough to stop the behavior.
Our letters at HopkinsWay are several pages long, providing summaries of the relevant law, and their application. We can also send a draft complaint to demonstrate we are ready to follow through with our promise to take the matter to court if the demands of the letter are not met.
At law, certain professions and groups of people automatically owe you a duty to keep private information confidential. This includes doctors, lawyers, accountants, psychologists, and members of the clergy.
When you are dealing with anyone outside these groups and desire for information to be kept confidential, then a confidentiality agreement will create an enforceable duty for them to refrain from sharing private information under the law. Confidentiality agreements lay out binding terms and conditions that prohibit the parties from disclosing confidential and proprietary information.
Confidentiality agreements are important to businesses of every size. They protect sellers from a prospective buyer’s misuse of the seller’s confidential information about personnel and prevents a prospective buyer from then hiring away the seller’s key managers and employees without following through with the sale. Confidentiality agreements are also help ensure that personnel information, business processes, or internal investigations stay within a company.
Businesses are not the only ones that can benefit from confidentiality agreements. Confidentiality agreements can be used to keep information from settlement, mediation, or post-divorce proceedings confidential and out of the public eye.
At HopkinsWay, we can work with you to create a binding confidentiality agreement to protect your confidential information from disclosure, and provide a basis for a legal remedy if it is every violated.
Starting out on a new venture, you don’t want to risk a partner or employee taking your idea elsewhere. Other times, you may simply be “pitching” your product or idea to a new investor. In all of the above cases, non-disclosure agreements can be used by both small business and major corporations to protect this sensitive information.
Nondisclosure agreements require one party to keep confidential certain information that is disclosed in the course of a transaction, and to use that information only for the particular purpose for which it is disclosed. These agreements can be for an indefinite period or fixed duration of time, ending the agreement after several months or years. The agreement can even outline consequences and waivers that affect the agreement.
If a party violates the agreement, a court can order the party to keep the terms confidential. If that fails, financial compensation for loss as a result of the breach of the nondisclosure agreement is available.
At HopkinsWay, we can help you build a privacy agreement driven by your business model and that will allow you to comply with both United States and laws from other countries, including the U.S.-E.U. Safe Harbor Privacy Principles.
Privacy agreements explain what you will do with information gathered from people, as well as how you store private information and for how long. Privacy agreements can be one of the most important aspects of a new website or startup phone app, as well as any initiative to track customer information in stores.
If you do business abroad or have a website with visitors from different countries, your privacy agreement must reflect the laws governing what needs to be included from each country. Privacy laws vary widely around the world, ranging from essentially non-existent to broad and far-reaching. However, failure to take into account the law of each country can result in enforcement by the Federal Trade Commission and other legal ramifications.
Privacy Breach Notices
Even in this day and age, there is still no such thing as perfect cyber security: data breaches can and will happen.
When a data breach occurs, nearly every state requires notices to be sent to affected customers. Big businesses and small businesses alike have a duty under the law to notify, as well as persons who conduct business in the respective state of the affected customer. Failure to send data breach notices can result in state and federal investigations, as well as lawsuits from shareholders and customers.
The requirements vary from state to state and the state laws affecting each customer must be taken into account when writing and sending out breach notices. Some states, like Arizona and Colorado, require you to conduct a “risk of harm analysis” before notifying customers. States also have different definitions of what makes up private information, as well as different timeframes for sending out notifications.
Here at HopkinsWay, we can help you identify and navigate the state data breach laws that reach your business, making sure each person you have private information on is properly notified per the laws of their state.
Contact our law firm to schedule a paid consultation with an attorney who has privacy litigation experience.