How to Sue for Invasion of Privacy

Preparing to Sue

Identify the invasion. “Invasion of privacy” is a blanket term used to describe many different actions. You can sue someone if they commit any of the following: Intrude on your solitude. Someone intrudes on your solitude when, without permission, they spy on you or intercept communications, such as telephone calls. Use your name or likeness without permission. Sometimes a business will use your image to help promote a product. If they do not have your permission, then you can sue. Disclose private facts about you publicly. You can sue if someone divulges private facts that a reasonable person would find offensive. They must tell more than one person; however, there is no minimum number of people who must be told for the disclosure to be “public.” Present you in a false light. You can also sue if someone misrepresents you in a way that would be highly offensive to a reasonable person. For example, someone might show a picture of you in a newspaper with the heading “Suspect Arrested.” However, they might decline to report that the police cleared you of wrongdoing soon after arresting you.

Gather evidence of the invasion. In order to bring a lawsuit, you need evidence that shows the defendant violated your rights. Your evidence will depend on the type of invasion you are suing for. For example, if someone has intruded on your solitude, then you can take pictures of the person, or call the police and get a copy of the police report. Other witnesses might have seen someone spying in your window or using a long-distance lens to spy on you in your home. If someone uses your name or likeness, you should get copies of any advertisement used. When someone publicly discloses private facts, you should get evidence of the disclosure. For example, if the defendant disclosed the facts in an email or a newspaper article, get copies of those documents. You can also get the names of witnesses who heard the person make an oral disclosure. You can get similar evidence if someone represented you in a false light. For example, you should hold onto the communication (email, newspaper article, etc.) that contains the misrepresentation.

Find your state's law. Each state will recognize different forms of the four common case types. Some states may recognize all four (e.g., Ohio) while others may only recognize one (e.g., Alaska, who has only formally recognized misappropriation). The majority of states recognize all four case types. While some states have not formally recognized any privacy law (e.g., Vermont), every indication is that they would recognize them under the right circumstances. Check with your state so you understand exactly how you have to formulate your legal claim.

Try alternative claims. At least one state, North Carolina, has explicitly rejected some of the four common claims, instead resting on the tort of intentional infliction of emotional distress (IIED). Therefore, if you live in a state like North Carolina, you may have to file a lawsuit using a theory of IIED. IIED is a tort that can be proven if you can show the defendant acted intentionally or recklessly, that their conduct was outrageous and extreme, and that their conduct caused you severe emotional distress.

Document your injury. Most invasions of privacy cause emotional harm, and you can be compensated for your emotional distress. You should try documenting your injury by sitting down and writing down your memories of the invasion. Explain how the invasion made you feel. You might also have suffered some financial harm as well. For example, if you lost business contracts because of the invasion, then you should document that. Note how much the contract was worth and get proof that the invasion caused the loss. For example, if you were misleadingly presented as a criminal in a newspaper story, then cut out the story. A client might have sent an email firing you because of your alleged criminal record. Save the email, which is proof that the invasion led to your economic loss.

Discuss your case with a lawyer. Not every state allows you to bring invasion of privacy claims. In order to see if you have a valid case, you should meet with a lawyer. He or she can advise you whether or not you should bring a lawsuit. To find a lawyer, you should contact your state’s bar association, which runs a referral program. Call up the lawyer and schedule a consultation. Attorneys usually offer a half-hour consultation for free or for a reduced price. Even if you can’t afford to hire a lawyer to take over the entire case, you should think about meeting for a consultation. At the consultation, you can get information about the strength of your lawsuit and whether or not you can bring an invasion of privacy claim. Also, the lawyer might share tips for how you can represent yourself in court.

Identify possible remedies. You should also discuss possible legal remedies with the lawyer. A “remedy” is whatever the judge awards you if you win the case. Generally, you can get the following in invasion of privacy lawsuits: Compensation. The court can order the defendant to pay you money as compensation for emotional suffering or economic damage. Punitive damages. In some states, you can get punitive damages, which are meant to punish the defendant. A judge will award them when the defendant’s conduct is particularly hateful. Punitive damages are in addition to any compensation awarded. An injunction. This is a court order not to do something. If the defendant is selling a product by using your likeness or name, you can get the court to order the defendant to stop. Disgorgement of profits. If the defendant made money by invading your privacy, then you can have the judge order the defendant to hand those profits over to you.

Filing a Lawsuit in Court

Get a complaint form. You will start the lawsuit by filing a complaint in court. If you have a lawyer, he or she should draft the complaint and handle all aspects of your lawsuit. However, if you are representing yourself, then you need to create and file your complaint. Many courts now have printed complaint forms you can fill out. You should stop by your courthouse and ask the clerk if one is available. If one isn’t available, then ask the court clerk if there is a sample that you can use as a guide for drafting your own. If there isn’t, then you should seriously consider hiring an attorney so that your complaint is sufficient.

Complete the complaint form. You should enter the required information by using either a typewriter or by printing neatly in black ink. Each court’s form is different, but you will generally be asked for the following information: your name and contact information the defendant’s name and contact information what you are suing for (e.g., monetary compensation) and how much a description of the invasion whether you want a jury or not

File the form. Once you have completed the complaint, you should make a few copies. Then take the copies and the original to the court clerk. Ask to file the original. The clerk should stamp your copies with the date. One copy is for your records and another copy is for the defendant. You will probably also have to pay a filing fee. The amount will vary by the court. Call ahead and ask for the amount and acceptable methods of payment. If you can’t afford the filing fee, then ask the court for a fee waiver form.

Send notice to the defendant. You need to notify the defendant of your lawsuit. You will need to send him or her a copy of your complaint as well as a “summons,” which is a legal command to respond to the lawsuit. You will get the summons from the court clerk. Typically, you can deliver notice by having someone hand deliver the documents to the defendant. You can usually have a private process server or the sheriff make service. You can also have anyone 18 or older who is not a party of the lawsuit make service.

File your proof of service. Whoever makes service needs to fill out a proof of service form. This form might go by a different name, such as “affidavit of service.” You can get the form from your court clerk. After service is made, the server will complete the form and sign it. Then he or she will either return it to you or file it with the court. If the form is returned to you, make a copy for your records and then file the original with the court.

Performing Pre-Trial Tasks

Conduct discovery. Once the defendant responds to your lawsuit, you will begin a period of discovery, which will allow you and the defendant to gather relevant information from each other. Discovery can last for a long period of time, often months or years, and can be expensive. Take this into consideration when you file your lawsuit. During discovery you will have the ability to gather facts, talk with witnesses, find out what the defendant plans on saying, and see how good your case is. Discovery often takes the following forms: Informal investigations that include conducting witness interviews, gathering public documents, and taking pictures. Interrogatories, which are written questions that you submit to someone to answer. The answers are written under oath and can be used in court. Depositions, which are in-person interviews with relevant parties or witnesses. The interview is conducted under oath and they can be used in court. Requests for documents, which can be used to request documents that would not be publicly available. However, some documents may be privileged and out of your reach. Your attorney will be able to tell you the boundaries. Subpoenas, which are court orders requiring someone to do something.

Defend against a motion for summary judgment. After discovery but before trial, the defendant will likely file a motion for summary judgment. This is a written motion asking the court to rule in their favor before the litigation goes any further. To be successful, they must be able to show the judge that there are no disputed material facts and that they are entitled to judgment as a matter of law. When a judge reviews their motion, they will make all reasonable assumptions in your favor. Therefore, in order to defend against this motion, all you have to do is provide evidence and affidavits convincing the judge there are genuine disputes of fact or law. If there are, the case will move forward and the judge will deny their motion.

Participate in settlement discussions. Before the trial starts, you should attempt to come to a resolution with the defendant. Settling out of court is a great way to save time and money. Get together with the defendant and discuss the dispute and how it might be resolved. Find common ground and work to come up with a solution both parties are happy with. If you reach a settlement, you will inform the court that you have resolved the case. If you cannot reach an agreement with the defendant, you will have to go to trial.

Prepare for trial. If you have a lawyer, he or she should do all of the prep work for trial. However, if you are representing yourself, then you should take some time to pull your evidence together. Think about who to call as a witness. Witnesses can only testify to their personal knowledge. For example, a person who caught the defendant spying on you can testify as to what they saw. They can’t testify that their wife told them someone was spying on you. Also get relevant documents prepared to use as exhibits. You should use documents only if they prove some part of your case. For example, if private facts were published, you should introduce a copy of the publication. Likewise, if someone used your image to sell products, you should get a copy of the product packaging or advertisement that uses your image. You will introduce them into evidence at trial. You will probably need to give the defendant a list of witnesses you intend to call as well as a copy of all documents. You should draft these and give them to the defendant. The court will give you the deadline for handing over this information.

Going to Court

Arrive on time. You should give yourself plenty of time to get to the courthouse. You will need to find parking and pass through courthouse security. Make sure to get to the courtroom about 15-30 minutes early. When you arrive, check in with the court clerk. You may have to sign in. You also might have to give the clerk a copy of the documents you intend to use.

Make an opening statement. The trial begins with opening statements from both sides. Your lawyer should present a roadmap of what the evidence will be. Don’t expect your lawyer to start making arguments. Instead, the purpose of the opening statement is simply to give the judge some idea of what evidence you will present. If you are representing yourself, you will have to handle the entire trial, including the opening statement. You should outline the highlights of your witness testimony and present it to the judge. For example, you can say, “And as the evidence will show, the defendant was arrested on May 22, 2015 while sitting in a car outside my house, pointing a long-distance telephoto lens at my house. After the police confiscated the film, they had it developed. As the evidence will show, the photographs showed me in my bedroom undressed.”

Testify on your own behalf. As the victim of the invasion, you will undoubtedly testify at trial. Your lawyer will ask you questions, and then the defendant’s lawyer will be able to ask you questions on cross-examination. If you don’t have a lawyer, then you can probably give your side of the story in the form of a speech. Being an effective witness requires that you be upfront and confident. You will appear more believable if don’t drag your feet and try to avoid answering a question. Instead, be direct. Take your time. Although you should be direct, you should also give some thought to your answer. Don’t blurt out the first thing that comes into your head. If you don’t know the answer to a question, then don’t guess. Instead tell the lawyer you don’t know.

Cross-examine the defendant’s witnesses. The defendant gets to present his or her case after you. Typically, the defendant will testify in their defense. Your lawyer gets to cross-examine all witnesses, including the defendant. If you are representing yourself, then see Question Witnesses when Representing Yourself for tips on how to cross-examine a witness.

Deliver a closing argument. After all evidence has been submitted, both you and the defendant get to make closing arguments. Your goal is to show how all of the evidence supports your argument that the defendant invaded your privacy and caused you injury. Refer to specific pieces of evidence. Call witnesses by name to remind the judge of who the witness was. For example, you can argue, “Remember Mrs. Lee, my neighbor. She testified that she was driving home at 11:30 pm and passed my house. And she saw the defendant’s car parked outside my house, with the light on inside the car. She testified that the defendant looked to be spying on the house, so she went inside as soon as she got home and called the police. Her testimony directly contradicts the defendant’s claim that he never stopped in front of my house.”

Appeal, if necessary. If you lose at trial, you might want to think about bringing an appeal. You can start the appeal process by filing a Notice of Appeal form with the court clerk. You will not have much time. Generally, you have 30 or fewer days. In some states you will have only 10 days from the date final judgment is entered. You should meet with your lawyer as soon as possible to discuss the pros and cons of bringing an appeal. For example, appeals take a considerable amount of time—up to a year in most cases. Also, you will need a lawyer to draft your legal brief, since appeals are very technical. Nevertheless, if you think the judge made an obvious mistake, then an appeal might make sense. You can win a new trial or the appellate court might enter judgment in your favor.