Chapter 995

995.50 Annotation Oral communication among numerous employees and jail inmates is sufficient to constitute publicity under sub. (2) (c) [now sub. (2) (am) 3.]. The plain meaning of “a place” in sub. (2) (a) [now sub. (2) (am) 1.] is geographical and does not include a file of medical records. Hillman v. Columbia County, 164 Wis. 2d 376, 474 N.W.2d 913 (Ct. App. 1991).

995.50 Annotation 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. Whether a disclosure satisfies the publicity element of an invasion of privacy claim depends upon the particular facts of the case and the nature of the plaintiff’s relationship to the audience who received the information. Pachowitz v. LeDoux, 2003 WI App 120, 265 Wis. 2d 631, 666 N.W.2d 88, 02-2100.

995.50 Annotation An action for invasion of privacy requires: 1) a public disclosure of facts regarding the plaintiff; 2) the facts disclosed were private; 3) the private matter is one that would be highly offensive to a reasonable person of ordinary sensibilities; and 4) the party disclosing the facts acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter or with actual knowledge that none existed. In order to find public disclosure, the matter must be regarded as substantially certain to become one of public knowledge. Olson v. Red Cedar Clinic, 2004 WI App 102, 273 Wis. 2d 728, 681 N.W.2d 306, 03-2198.

995.50 Annotation The recording of sounds emanating from a neighbor’s home using a common recording device that was placed inside the defendant’s own window was not an intrusion of a nature highly offensive to a reasonable person in violation of sub. (2) (a) [now sub. (2) (am) 1.]. Poston v. Burns, 2010 WI App 73, 325 Wis. 2d 404, 784 N.W.2d 717, 09-0463.

995.50 Annotation Sub. (2) (a) [now sub. (2) (am) 1.] has a spatial basis—the invasion of privacy must occur in a place that a reasonable person would consider private or in a manner that is actionable for trespass. In this case, the only action that was allegedly taken by the defendant was the distribution of fliers containing information that was already available to the public. That the information may have inspired others to make phone calls, honk horns, or write letters does not mean that the defendant invaded the plaintiff’s private space. Keller v. Patterson, 2012 WI App 78, 343 Wis. 2d 569, 819 N.W.2d 841, 11-0334.

995.50 Annotation Sub. (2) (c) [now sub. (2) (am) 3.] addresses situations where an individual makes public statements about the private life of another person in a highly offensive way. In order to fall under sub. (2) (c) [now sub. (2) (am) 3.], the statements must make information public that was not previously available to the public. Keller v. Patterson, 2012 WI App 78, 343 Wis. 2d 569, 819 N.W.2d 841, 11-0334.

995.50 Annotation The more reasonable interpretation of “use” in sub. (2) (b) [now sub. (2) (am) 2.] is that it does not cover bidding on someone’s name as a keyword search term. The holding is limited to the particular “non-visible” type of use at issue in this case. Habush v. Cannon, 2013 WI App 34, 346 Wis. 2d 709, 828 N.W.2d 876, 11-1769.

995.50 Annotation The publicity of private facts cause of action under sub. (2) (am) 3. requires intentional conduct. An allegation of failing to prevent a data breach is not an allegation that a defendant intended the disclosure or publicity of private facts and, thus, is insufficient to state a claim for invasion of privacy by publicity of private facts. Reetz v. Advocate Aurora Health, Inc., 2022 WI App 59, 405 Wis. 2d 298, 983 N.W.2d 669, 21-0520.

995.50 Annotation The right to privacy law does not affect the duties of custodians of public records under s. 19.21. 68 Atty. Gen. 68.

995.50 Annotation Surveillance of a school district employee from public streets and highways by the employer school district’s agents to determine whether the employee was in violation of the district’s residency policy did not violate this section. Munson v. Milwaukee Board of School Directors, 969 F.2d 266 (1992).

995.50 Annotation While the Open Records Law and this section are related laws, they are only related in that a finding under the Open Records Law that a record should be made public would necessarily mean that “the information was available to the public as a matter of public record.” This is true because both statutes apply the same common-law balancing test when determining whether a record is public. When a trial court found only that the procedures delineated in the Open Records Law were not followed, those procedures had no impact on the question of whether a record is public under this section; the procedures are merely procedural, not substantive. Hutchins v. Clarke, 661 F.3d 947 (2011).

995.50 Annotation In drafting this section, the legislature used New York’s privacy statute as a model. The text of sub. (2) (b) [now sub. (2) (am) 2.] duplicates nearly verbatim New York law. Case law under the New York privacy statute may be particularly useful. Bogie v. Rosenberg, 705 F.3d 603 (2013).

995.50 Annotation A claim under sub. (2) (a) [now sub. (2) (am) 1.] must show that the alleged intrusion into privacy would be highly offensive to a reasonable person. The question of what kinds of conduct will be regarded as a highly offensive intrusion is largely a matter of social conventions and expectations. The offensiveness of the intrusion itself cannot be based on the content or substance captured by virtue of the alleged intrusion. The fact that the plaintiff was embarrassed to be filmed saying something the plaintiff regretted having said and later deemed offensive did not convert the filming itself into a highly offensive intrusion. Bogie v. Rosenberg, 705 F.3d 603 (2013).

995.50 Annotation When a matter of legitimate public interest is concerned, no cause of action for invasion of privacy will lie. This newsworthiness or public interest exception should be construed broadly, covering not only descriptions of actual events, but also articles concerning political happenings, social trends, or any subject of public interest. Wisconsin courts have also incorporated the common law exception for incidental use into the statute. Bogie v. Rosenberg, 705 F.3d 603 (2013).

995.50 Annotation Court documents are matters of public interest. It follows that, if court documents warrant the public interest exception, Internet search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception. To the extent that a search provider’s profit motives undermine the reliance on the public interest argument, the exception applies even when the entities sharing the information do so largely, and even primarily, to make a profit. Stayart v. Google Inc., 710 F.3d 719 (2013).

995.50 Annotation A person’s religious affiliation, standing alone, is not so private that publication would offend a reasonable person and constitute an invasion of privacy under sub. (2) (c) [now sub. (2) (am) 3.]. Briggs & Stratton Corp. v. National Catholic Reporter Publishing Co., 978 F. Supp. 1195 (1997).

995.50 Annotation The exclusivity provision of the Workers Compensation Act does not bar a claim for invasion of privacy under this section. Marino v. Arandell Corp., 1 F. Supp. 2d 947 (1998).

995.50 Annotation The Wisconsin court of appeals has held that unwanted phone calls do not constitute an invasion of privacy under this section. Baemmert v. Credit One Bank, N.A., 271 F. Supp. 3d 1043 (2017).

995.50 Annotation The first element of a claim under sub. (2) (c) [now sub. (2) (am) 3.] requires intentional disclosure by the defendant. A defendant is not liable under this section for information stolen by a third party. Fox v. Iowa Health System, 399 F. Supp. 3d 780 (2019).

995.50 Annotation The Absence of False Light from the Wisconsin Privacy Statute. Dee. 66 MLR 99 (1982).

995.50 Annotation The Tort of Misappropriation of Name or Likeness Under Wisconsin’s New Privacy Law. Endejan. 1978 WLR 1029.

995.50 Annotation The Case for Reexamining Privacy Law in Wisconsin: Why Wisconsin Courts Should Adopt the Interpretation of the Tort of Intrusion upon Seclusion of Fischer v. Mount Olive Lutheran Church. Infield-Harm. 2004 WLR 1781.

995.50 Annotation The Scope of Wisconsin’s Privacy Statute. Backer. Wis. Law. Sept. 2003.

995.50 Annotation Employer Liability for Employment References. Mac Kelly. Wis. Law. Apr. 2008.

995.50 Annotation 101: How to Combat Revenge Porn. Post. Wis. Law. Feb. 2020.

995.55 995.55 Internet privacy protection.

995.55(1) (1) Definitions. In this section:

995.55(1)(a) (a) “Access information” means a user name and password or any other security information that protects access to a personal Internet account.

995.55(1)(b) (b) “Educational institution” means an institution of higher education, as defined in s. 108.02 (18); a technical college established under s. 38.02; a school, as defined in s. 440.52 (11) (a) 2.; a public school, as described in s. 115.01 (1); a charter school, as defined in s. 115.001 (1); a private school, as defined in s. 115.001 (3r); or a private educational testing service or administrator.

995.55(1)(c) (c) “Employer” means any person engaging in any activity, enterprise, or business employing at least one individual. “Employer” includes the state, its political subdivisions, and any office, department, independent agency, authority, institution, association, society, or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts.

995.55(1)(d) (d) “Personal Internet account” means an Internet-based account that is created and used by an individual exclusively for purposes of personal communications.

995.55(2) (2) Restrictions on employer access to personal Internet accounts.

995.55(2)(a) (a) Except as provided in pars. (b), (c), and (d), no employer may do any of the following:

995.55(2)(a)1. 1. Request or require an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.

995.55(2)(a)2. 2. Discharge or otherwise discriminate against an employee for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1.

995.55(2)(a)3. 3. Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.

995.55(2)(b) (b) Paragraph (a) does not prohibit an employer from doing any of the following:

995.55(2)(b)1. 1. Requesting or requiring an employee to disclose access information to the employer in order for the employer to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer or in order for the employer to gain access to an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes.

995.55(2)(b)2. 2. Discharging or disciplining an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.

995.55(2)(b)3. 3. Subject to this subdivision, conducting an investigation or requiring an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment-related misconduct, violation of the law, or violation of the employer’s work rules as specified in an employee handbook, if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred. In conducting an investigation or requiring an employee to cooperate in an investigation under this subdivision, an employer may require an employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.

995.55(2)(b)4. 4. Restricting or prohibiting an employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources.

995.55(2)(b)5. 5. Complying with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations or the rules of a self-regulatory organization, as defined in 15 USC 78c (a) (26).

995.55(2)(b)6. 6. Viewing, accessing, or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain.

995.55(2)(b)7. 7. Requesting or requiring an employee to disclose the employee’s personal electronic mail address.

995.55(2)(c) (c) Paragraph (a) does not apply to a personal Internet account or an electronic communications device of an employee engaged in providing financial services who uses the account or device to conduct the business of an employer that is subject to the content, supervision, and retention requirements imposed by federal securities laws and regulations or by the rules of a self-regulatory organization, as defined in 15 USC 78c (a) (26).

995.55(2)(d) (d) An employer that inadvertently obtains access information for an employee’s personal Internet account through the use of an electronic device or program that monitors the employer’s network or through an electronic communications device supplied or paid for in whole or in part by the employer is not liable under par. (a) for possessing that access information so long as the employer does not use that access information to access the employee’s personal Internet account.

995.55(3) (3) Restrictions on educational institution access to personal Internet accounts.

995.55(3)(a) (a) Except as provided in par. (b), no educational institution may do any of the following:

995.55(3)(a)1. 1. Request or require a student or prospective student, as a condition of admission or enrollment, to disclose access information for the personal Internet account of the student or prospective student or to otherwise grant access to or allow observation of that account.

995.55(3)(a)2. 2. Expel, suspend, discipline, or otherwise penalize any student for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the student’s personal Internet account, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1.

995.55(3)(a)3. 3. Refuse to admit a prospective student because the prospective student refused to disclose access information for, grant access to, or allow observation of the prospective student’s personal Internet account.

995.55(3)(b) (b) Paragraph (a) does not prohibit an educational institution from doing any of the following:

995.55(3)(b)1. 1. Requesting or requiring a student to disclose access information to the educational institution in order for the institution to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the institution or in order for the educational institution to gain access to an account or service provided by the institution, obtained by virtue of the student’s admission to the educational institution, or used for educational purposes.

995.55(3)(b)2. 2. Viewing, accessing, or using information about a student or prospective student that can be obtained without access information or that is available in the public domain.

995.55(4) (4) Restrictions on landlord access to personal Internet accounts.

995.55(4)(a) (a) Except as provided in par. (b), no landlord may do any of the following:

995.55(4)(a)1. 1. Request or require a tenant or prospective tenant, as a condition of tenancy, to disclose access information for the personal Internet account of the tenant or prospective tenant or to otherwise grant access to or allow observation of that account.

995.55(4)(a)2. 2. Discriminate in a manner described in s. 106.50 (2) against a tenant or prospective tenant for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the personal Internet account of the tenant or prospective tenant, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1.

995.55(4)(b) (b) Paragraph (a) does not prohibit a landlord from viewing, accessing, or using information about a tenant or prospective tenant that can be obtained without access information or that is available in the public domain.

995.55(5) (5) No duty to monitor.

995.55(5)(a) (a) Nothing in this section creates a duty for an employer, educational institution, or landlord to search or monitor the activity of any personal Internet account.

995.55(5)(b) (b) An employer, educational institution, or landlord is not liable under this section for any failure to request or require that an employee, applicant for employment, student, prospective student, tenant, or prospective tenant grant access to, allow observation of, or disclose information that allows access to or observation of a personal Internet account of the employee, applicant for employment, student, prospective student, tenant, or prospective tenant.

995.55(6) (6) Enforcement.

995.55(6)(a) (a) Any person who violates sub. (2) (a), (3) (a), or (4) (a) may be required to forfeit not more than $1,000.

995.55(6)(b) (b) An employee who is discharged or otherwise discriminated against in violation of sub. (2) (a) 2., an applicant for employment who is not hired in violation of sub. (2) (a) 3., a student who is expelled, suspended, disciplined, or otherwise penalized in violation of sub. (3) (a) 2., or a prospective student who is not admitted in violation of sub. (3) (a) 3., may file a complaint with the department of workforce development, and that department shall process the complaint in the same manner as employment discrimination complaints are processed under s. 111.39. If the department of workforce development finds that a violation of sub. (2) (a) 2. or 3. or (3) (a) 2. or 3. has been committed, that department may order the employer or educational institution to take such action authorized under s. 111.39 as will remedy the violation. Section 111.322 (2m) applies to a discharge or other discriminatory act arising in connection with any proceeding under this paragraph.

995.55(6)(c) (c) A tenant or prospective tenant who is discriminated against in violation of sub. (4) (a) 2. may file a complaint with the department of workforce development, and that department shall process the complaint in the same manner as housing discrimination complaints are processed under s. 106.50. If the department of workforce development finds that a violation of sub. (4) (a) 2. has been committed, that department may order the landlord to take such action authorized under s. 106.50 as will remedy the violation.

995.55 History History: 2013 a. 208; 2017 a. 59.

995.55 Annotation Social Media: Locking the Door to Private Information. Dill. Wis. Law. July/Aug. 2014.

995.60 995.60 Use of surveillance devices in connection with real estate sales.

995.60(1) (1) Definitions. In this section:

995.60(1)(a) (a) “Real estate” means land and the improvements to the land.

995.60(1)(b) (b) “Record” means to take a photograph, to make a motion picture, videotape, audiotape, recording, or other visual or audio representation, or to record or store in any medium data that represents a visual image or sound recording.

995.60(1)(c) (c) “Representation” means a photograph, exposed film, motion picture, videotape, audiotape, recording, other visual or audio representation, or data that represents a visual image or audio recording.

995.60(1)(d) (d) “Surveillance device” means a camera, audio or video recorder, or any other device that may be used to observe, record, or transfer sounds or images.

995.60(2) (2) Use of surveillance devices. Except as provided under sub. (3), an owner of real estate may use a surveillance device in or on the real estate to observe or record an individual who is present in or on the real estate for a private showing, open house, or other viewing of the real estate in connection with the owner’s attempt to sell the real estate.

995.60(3) (3) Prohibited uses.

995.60(3)(a) (a) An owner of real estate may not use a surveillance device under sub. (2) in a bathroom or washroom.

995.60(3)(b) (b)

995.60(3)(b)1. 1. Except as provided under subd. 2., an owner of real estate may not copy, sell, rent, broadcast, post, publish, distribute, disclose, transfer, or otherwise share a representation of an individual recorded with a surveillance device under sub. (2).

995.60(3)(b)2. 2. An owner of real estate may provide a representation of an individual recorded with a surveillance device under sub. (2) pursuant to a court order or to the request of a law enforcement officer who is investigating possible criminal conduct.

995.60(4) (4) Interpretation.

995.60(4)(a) (a) The use of a surveillance device by an owner of real estate in or on the real estate under this section does not constitute installing a surveillance device in a private place for purposes of s. 942.08 (2) (a).

995.60(4)(b) (b) An owner of real estate that records a representation of an individual with a surveillance device under this section does not capture a representation of the individual under circumstances in which the individual has a reasonable expectation of privacy for purposes of s. 942.09 (2) (am) 1.

995.60(5) (5) Enforcement. An individual who violates sub. (3) (b) 1. may be required to forfeit not more than $500.

995.60 History History: 2019 a. 72.

995.67 995.67 Domestic abuse services; prohibited disclosures.

995.67(1) (1) In this section:

995.67(1)(a) (a) “Domestic abuse” has the meaning given in s. 49.165 (1) (a).

995.67(1)(b) (b) “Domestic abuse services organization” means a nonprofit organization or a public agency that provides any of the following services for victims of domestic abuse: