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How to Defend Against Privacy Violation Claims
Privacy violations come in many varieties. For example, you may have disclosed private information about someone in a published article, or you might have been accused of entering a tenant’s apartment without giving the required notice. To defend against privacy violations, you need to avoid lawsuits by taking precautions such as getting consent for the use of information. If you are sued, then you should meet with a qualified attorney to discuss your defenses.
Responding to a Lawsuit
Read the complaint.When someone sues you for violating their privacy, they first file a complaint in court. This complaint will allege how you violated the plaintiff’s privacy. You should read this complaint closely and highlight all allegations of privacy violations.
- Also look at the summons which came with the complaint. The summons should tell you when you must respond to the plaintiff’s lawsuit.
Research the law.To properly defend yourself from a lawsuit you need to understand the law in your state. To find the law, you should visit the nearest law library, which will be at either a courthouse or a law school. You can ask the librarian to show you the relevant law on privacy.
- You probably should also meet with a lawyer, depending on how much the plaintiff is suing you for. The complaint will state the amount of damages the plaintiff is seeking. Privacy law is very complex, and only a qualified attorney can help you build a compelling defense.
Draft an answer.You respond to a complaint by filing an answer. The answer has two purposes. First, you must respond to each allegation made in the complaint. You can admit, deny, or claim insufficient knowledge to admit or deny each allegation.
- Each allegation will be listed in numbered form. You will then type, “As to Allegation 1: Denied. As to Allegation 2: Insufficient knowledge,” etc.
- Have your copy of the complaint handy as you complete your answer. Typically, the complaint begins with information about who the parties are. Then the complaint will explain the factual background, in numbered paragraphs.You need to be sure to respond to each paragraph.
- Second, you can raise different affirmative defenses. With an affirmative defense, you win even if the plaintiff proves each element of the privacy violation. For example, when a plaintiff signs a form consenting to your use of private information, then you can defeat the lawsuit.
- In addition to consent, you can argue that the lawsuit was brought too late. Each state has a statute of limitations, which is the maximum amount of time the plaintiff has to bring a lawsuit. You should research the statute of limitation for each invasion of privacy claim the plaintiff brings.
File the answer.Once you have completed the answer, you must file it with the court. Make several copies and take them all to the court clerk. Ask to file the original and have the clerk stamp all of the copies.
- You will need to serve a copy of the answer on the plaintiff. Ask the court clerk for acceptable methods of service. Typically, you can mail the answer or have it personally delivered by someone 18 or older who is not a party to the lawsuit.
Engage in discovery.Once you have filed an answer, you and the plaintiff will engage in fact-finding called “discovery.” During this process, you can request any relevant documents in the custody or control of the other party. For example, you might want to see medical bills, if the plaintiff is claiming to have suffered grave emotional harm from the invasion.
- You can also ask questions of the plaintiff, whether in written form (Interrogatories) or orally (during a deposition).
- You should think strategically about what information you want to get from the plaintiff. For example, if you were given oral consent by the plaintiff for invading their privacy, then you will want to try and get them to admit as much in their deposition.
- Ask a series of questions, such as “And did the defendant ask if he could interview you for publication?” “What did you say?” Although the plaintiff is unlikely to come right out and say, “Yes, I gave consent,” you can get the plaintiff to repeat what language she used, which might effectively be consent.
- You should also try to get the plaintiff to minimize the amount of damages they have suffered because of the invasion. You might still lose your case, but if you can get the plaintiff to admit the invasion didn’t impact them very much, then you might only have to pay the plaintiff a couple hundred dollars.
Submit a motion for summary judgment.You can try to win the case before ever going to trial. To do this, you should file a motion for summary judgment. In this motion, you ask the court to dismiss the lawsuit because there are no material facts in dispute and you are entitled to win on the law.
- Your argument will differ somewhat depending on the type of invasion the plaintiff alleges. For example, you might be entitled to summary judgment for public disclosure of private facts if you can show the plaintiff is a public figure (like a politician) and the private facts were actually newsworthy.
- You can also win a motion for summary judgment if, during a deposition, the plaintiff admitted to having given you consent.
- It is best to have a lawyer draft this motion for you. Motions for summary judgment require extensive familiarity with the law. Only a qualified attorney can make the type of argument a judge will find compelling.
Document your conduct.The focus of the lawsuit will be on your conduct. Accordingly, you should retrace your steps and document what you did. For example, if you are being sued for something you published about someone, then you should gather your notes, drafts, and sources used in your fact-checking.
- Pull together copies of notices and consent forms that you obtained. If you received oral consent, write down what the person said and look for any contemporaneous evidence of that consent, such as a hand-written note or email.
Defending Yourself in Court
Get to the courthouse early.You want to be in the courtroom at least 15 minutes before your case is scheduled to start. Accordingly, give yourself enough time to find parking and go through security.
- Turn off all cell phones, pagers, and laptops before entering the courtroom.
- Also don’t bring drinks or food into court. If you need to have breakfast, then consume all food before going inside.
Make an opening statement.The trial begins with each attorney delivering an opening statement. The opening statement is a roadmap which clarifies what information will be presented and what it will prove.Opening statements are usually fairly short, though the precise length will depend on how complicated the case is.
- Give the jurors the relevant facts. For example, “As the evidence will show, the plaintiff and defendant met at the lobby of the Hilton Hotel on June 22, 2015. The defendant interviewed her for about half an hour.”
Question the plaintiff’s witnesses.The plaintiff goes first and presents witnesses. As the defendant, you want to challenge the witness’s credibility. You can do this by pointing to inconsistencies in the witness’s stories.
- For example, if the witness gave deposition testimony, then you can confront the witness with a prior inconsistent statement given during the deposition. The plaintiff might claim that she never gave you consent for publishing private information during your interview when, in a deposition, she stated that she asked to see a draft of the article before it was published.
Present your case.As the defendant, you go second. You can call witnesses and present evidence that supports your case. Before even going to court, you should talk with your attorney about what witnesses will be helpful.
- For example, you might want to call someone who overheard the plaintiff disclosing the private facts to a large group of people at a dinner party. This type of witness would help you win a case for private disclosure of public facts.
Deliver a closing argument.After all evidence has been admitted, each attorney will deliver a closing argument. The purpose of the closing argument is to sum up the evidence and to show the jury how the evidence warrants a verdict in your favor.
- The closing argument is the first time you are allowed to argue in front of the jury. Make sure to remind the jurors of specific evidence: “There is plenty of proof that the plaintiff consented to the publication. Remember the phone records, which showed a phone call one week after the interview. The call lasted for ten minutes. Although the plaintiff denied making the call, the records show the call came from her cell phone. It was during that conversation that she asked to see a copy of the article. So she knew the interview was on the record and for publication.”
Wait for the verdict.After closing arguments, the judge will give the jury instructions. The jury will then retire to deliberate. In many states, the jury does not need to be unanimous to find you liable for a civil tort like invasion of privacy.Instead, you can be found liable if nine or ten jurors vote against you.
- If you lose at trial, you should discuss with your lawyer whether to appeal. Appeals can take up to a year to decide. You should ask your lawyer whether it makes sense to appeal, or whether you should simply pay the court judgment against you.
- If you want to appeal, then fill out a Notice of Appeal form, which you can get from the court clerk.
Avoiding Future Lawsuits
Identify common privacy violations.You can potentially violate someone’s privacy in a variety of ways. Some of the more common privacy violations include:
- Entering a tenant’s apartment without permission. Under your state or local law, you need to provide advance written notice before entering a tenant’s apartment. If you fail to do so, you might have violated their privacy.
- Mishandling protected health information. The federal Health Insurance Portability and Accountability Act (HIPAA) strictly limits how you handle and transmit health information.If a patient’s protected health information is intercepted by a third party, you can be liable.
- Publicly disclosing private facts. If you widely distribute sensitive, private information about another person, you can be liable for invasion of privacy.
- Intruding upon the seclusion of another. When you spy on someone, whether physically (by trespassing) or electronically (by using wiretaps or long-range cameras), you can be held liable for invasion of privacy.
- Presenting someone in a false light. If you publish factual information about a person, which nevertheless creates a false impression, then you could be sued for “false light” invasion of privacy.
- Misappropriating someone’s name or likeness. You also invade someone’s privacy when you take someone’s name or likeness and benefit from it. For example, if you falsely claim a celebrity endorses your product, then you have misappropriated their identity.
Provide appropriate notice.If you are a landlord who needs to enter a tenant’s apartment, then you should provide the required written notice. Read your state or local law to find out the required substance of the notice.
- In Washington, for example, you must provide at least 48 hours’ notice to enter a unit or 24 hours’ notice if entering to show the unit to a prospective tenant.
- In the notice, you also must state the date and time in which you will enter the apartment and provide a telephone number the tenant can call in order to reschedule or to object.Read your state and local law to find your requirements and follow them.
- Hold onto copies of any notice you gave and write down the date you gave it to the tenant.
Get consent waivers.Where possible, you should always try to get consent from people. Consent is typically a complete defense to invasion of privacy claims. The best consent would be a written waiver form, signed by the subject.
- For example, health care patients can consent to the release of their healthcare information as well as to having their information transmitted electronically (such as by email). You should have patients fill out a consent form as soon as they come to your office for medical treatment.
- If you interview someone, you can get them to sign an interviewer waiver form. This is particularly important for journalists who hope to use information obtained when interviewing someone. You can find a sample interview release at the University of Michigan Press page at .
- To find appropriate waiver forms, you can search the Internet for samples, which you can then modify to suit your needs.
Use best journalistic practices.Often reporters are accused of violating privacy when they create a false impression or publicly disclose private facts. You can protect yourself by using best journalistic practices with respect to sourcing, gathering, and presenting information.
- If possible, use information gathered from public places and public sources. Because this information is already in the public sphere, you are unlikely to be successfully sued for invading someone’s privacy.Public records include land records, court transcripts, and public financial information.
- Don’t use concealed microphones or cameras. When someone invites you into their home, they haven’t necessarily consented to being recorded. Make sure subjects are aware that you are taping them.
- Pay attention to how you illustrate articles. If you write a negative article (for example on people who steal), then you shouldn’t use a photograph with an identifiable person in it. Doing so might create a false impression that the person depicted is a thief.
Safeguard private information.If someone has entrusted you with private information, then you must use proper safeguards so that the information is not intercepted by third parties. Health care providers (such as doctors, dentists, pharmacies, and health insurance companies) must be particularly mindful of safeguarding patient health information.
- You should train employees on privacy policies and proper protocols for accessing and handling private information.
- Lock up or otherwise safely store private information behind a password-protected firewall.
- Properly dispose of the private information by shredding or otherwise destroying documents.
- If you are a health care provider, then you should also hire a HIPAA compliant email provider. These providers use the proper encryption techniques on electronic communications. They can also help you store your private information safely. For more information, see Make Email HIPAA Compliant.
Hire a lawyer.Attorneys can help make sure that you are in compliance with all applicable laws. They are also helpful should you be sued. To find a qualified attorney, first identify the kind of privacy violation you might potentially violate. Then find an attorney who specializes in that field.
- For example, if you are a landlord, then you would want to hire a landlord-tenant attorney. Conversely, if you are worried about violating HIPAA, then you should find a healthcare attorney. During the consultation, ask if the attorney has experience in compliance. They should also specifically list compliance experience on their website.
- For additional tips, read Find a Good Attorney.
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