Just this month, two large jury awards were given to celebrities in their respective civil suits alleging amongst other things, invasion of privacy.
- First, FOX sportscaster Erin Andrews was awarded $55 million in her lawsuit against a Nashville hotel and stalker after she was secretly videotaped in her hotel room in 2008. The jury found that the hotel chain was 49 percent at fault and held them liable for approximately $27 million.
- Then last week, Terry Bollea, known publicly as Hulk Hogan, was awarded $115 million in damages in his invasion of privacy case against Gawker.com over its publication of a sex tape involving Hogan. The Florida jury’s award consisted of $55 million for economic harm and $60 million for emotional distress, and does not even include punitive damages which will have to be established separately.
Although the respective defendants in these two cases still have the opportunity to appeal, the fact remains that these huge awards demonstrate these juries’, and likely the overall public’s, disgust with invasion of privacy. Of course, the salacious nature of these videos, which involve the most intrusive and intimate aspects of an individual’s life, surely contributed to result in these two litigations. That being said, it is a reminder to everyone, including employers, as to the importance individuals place on their own privacy and to ensure that one does not unjustly intrude on someone’s sacred private space.
This doesn’t mean that employees have an unfettered expectation of privacy. Typically, state laws determine privacy rights by determining whether employees have a reasonable expectation of privacy. Therefore, it is incredibly important for employers to have specific and detailed privacy policies that set forth that certain communications, and information utilized on employer’s computers and servers, can be monitored by their employers so as to eliminate an expectation of privacy as to certain matters.
In addition, employers should be aware of any state specific laws that prohibit employers from accessing certain personal information of their employees. For example, approximately twenty-three states have enacted some sort of social media privacy law, mostly prohibiting employers from requesting usernames and passwords, or other type of access, to an individual’s social media accounts. Of course, exceptions apply in some states, including when employees access their social media accounts at work, and access to pertinent information on such accounts could be discoverable in any pending litigation. As a further example, the Electronics Communications Privacy Act places certain limitations on an employer’s right to monitor its employee’s telephone usage while at work, and certain states require that all parties to a monitored phone conversation receive prior notification of said monitoring.
Therefore, employers should not only be aware of applicable laws regarding the privacy rights of employees, particularly under state law, but should also ensure they have robust policies and procedures, that they follow, and that set forth what reasonable expectation of privacy should be expected in the workplace. While the jury awards in the Andrews and Hogan case are extreme examples, they serve as a warning that invasion of privacy is taken seriously by the general public, and that the violation of an individual’s privacy could have dire consequences for the violator.