A Primer of Missouri Privacy Laws
Missouri’s privacy laws, including the Missouri Invasion of Privacy Act (MIPA), strike a balance between protecting individuals’ privacy interests and recognizing that privacy is not an absolute right. Missouri’s courts continually interpret Missouri’s Invasion of Privacy Act in line with MIPA’s legislative intent to protect individuals from commercial appropriation of their name and likeness, intrusion on seclusion, and publication of private facts without consent.
Like Missouri law, many common law jurisdictions have recognized four categories of invasion of privacy torts: appropriation, intrusion, disclosure, and false light. Missouri courts have recognized only three of the four types, having rejected the disclosure tort. The following description of the torts recognizes that they overlap in some aspects.
Invasion of privacy by appropriation typically arises where a person’s image or likeness is used for commercial purposes without his or her consent. A claim filed under MIPA requires that the unlawfully appropriated image or likeness be commercially exploited. Missouri courts award actual damages, but do not award punitive damages in private lawsuits for appropriation.
Invasion of privacy by intrusion arises where someone intentionally intrudes upon a person’s solitude or seclusion in a way that would be highly offensive to average people in the same circumstances. The conduct must be intentional, meaning the defendant must have purposefully invaded the plaintiff’s privacy.
Disclosure as a separate tort was recognized in some common law jurisdictions until it was subsumed by statutory claims because there is little functional difference between the two. Disclosure claims typically arise where information that was not already in the public domain is revealed to the public without the individual’s consent. Missouri courts have declined to recognize the tort, expressly noting the tort’s lack of jurisprudential utility.
Each of the above torts require the underlying conduct to be highly offensive. Missouri courts have specifically declined to define "highly offensive" in terms of an average person’s views. Instead , an objectively reasonable standard applies. Missouri courts agree that when determining offensiveness, several factors may be considered, including the nature of the private facts disclosed, their non-publicity, the public’s prior knowledge of the disclosed facts, and the relationship between the parties.
The Missouri Invasion of Privacy Act (MIPA) frustrates the foregoing common law analysis by adding additional elements to the appropriation tort and incorporating the offensive conduct requirement into the statute. MIPA criminalizes any person who willfully and without the consent of a person to communicate to the public in any manner a video recording, whether or not shown on television, of such other person when the video is taken of such other person while in a state of full nudity or under circumstances in which such other person had a reasonable expectation of privacy, or of any sexually explicit video recording of such other person unless such video recording was taken when no sexually explicit act was being committed. MIPA only requires the video to be communicated to the public in a manner that results in the video being viewed outside the room or space in which the communication was made.
MIPA’s plain meaning allows disclosures that would not meet Missouri’s general offensiveness standard. For example, a person could record then disclose a video of a naked minor having sexual encounter with another minor without violating MIPA, unless the disclosure is shown to the parents of the minors. But, the disclosures would violate the common law because such disclosures are considered to be highly offensive to a normal person.
In summary, Missouri’s courts have not addressed MIPA’s sliding scale standard of offensiveness, thereby ignoring MIPA’s legislative intent to protect individuals and apply Missouri’s general standard of offensiveness. If still considered constitutional for private civil suits, MIPA will cause Missouri law to deviate from the common law and its surrounding jurisprudence.
Types of Missouri Invasion of Privacy Laws
Although Missouri has not been very active in the area of invasion of privacy tort law, Missouri does recognize four separate types of invasion of privacy:
Intrusion upon Solitude. The invasion upon solitude occurs when a defendant wrongfully intrudes into a place or activity private to the plaintiff either physically or through some means like eavesdropping by way of a bugging device (McNair v. Kansas City Star Co., 163 S.W.3d 250, 250 (Mo. 2005)).
Public Disclosure of Private Facts. Public disclosure of private facts occurs "when there is publicity given to a matter concerning the private life of another if the matter publicized would be highly offensive and objectionable to a reasonable person" (Sims v. Smith & Nephew Richards Inc., 163 S.W.3d 388, 391 (Mo. 2005)).
False Light. False light is similar to defamation, with the real difference being defamation is about what is said, and false light is about the way something is presented. A false light case would be when a person is represented in a way that implies something he or she never did, even if the alleged act was not defamatory (Harris v. Burling, 322 S.W.3d 223, 231 (Mo.App. E.D. 2009)).
Appropriation. Appropriation is what gives a person the ability to sue for having his or her likeness used in a commercial context without permission and for gain. It is using a persons name, image, or look to convey something to the world, like advertising a product, without compensation (Hester v. Forest Pharmaceuticals, Inc., 573 F.Supp.2d 1219, 1229 (E.D.Mo. 2008)).
Missouri Invasion of Privacy Penalties
The legal consequences for invasion of privacy in Missouri vary depending on the nature and severity of the offense. These offenses can be broadly categorized into criminal and civil infractions. Criminal penalties may involve jail time, fines, or other sanctions while civil penalties may include damages, restitution, and other forms of compensation.
Under Missouri law, the crime of invasion of privacy is generally a Class A misdemeanor, which can result in imprisonment of up to one year in jail or a fine of up to $2,000. When the invasion of privacy is committed for sexual gratification, it rises to the level of a Class D felony, which carries a penalty of two to seven years of imprisonment or up to a $10,000 fine. Repeat offenders may face up to 15 years in prison.
In addition to criminal penalties, those found guilty of invasion of privacy may also be required to pay restitution for any damages caused by their actions. They may also face a permanent criminal record, which can have long-lasting impacts on employment opportunities and reputation in the community.
In civil court, individuals or entities guilty of invasion of privacy may be required to pay monetary damages to the person whose privacy was invaded. In some cases, the court may also issue an injunction to prevent further violations of privacy.
How to File a Privacy Suit in Missouri
In Missouri, the person who brings the lawsuit must be the person who is the subject of the invasion of privacy, not a third party. For example, if someone else recorded a telephone conversation with you without your consent, and that recording is put on a website, you are the only one who can sue. In that scenario, there would be a statute of limitations issue, since invasion of privacy cases must be brought within five years of the publication.
If you were increasing your risk of identity theft by having your Social Security Number and other personal information exposed on a company’s publicly accessible website, you could file an invasion of privacy lawsuit against the company. You would have standing to sue because this is information about you that was published on a website viewable by the general public without your permission .
If a lawyer gave confidential advice through an email accessible to the general public without the permission of the client, that lawyer could be sued for invasion of privacy under the Missouri legal principles of Section 652D of the Restatement (Second) of Torts. In that section, the Restatement describes what constitutes an invasion of privacy in five categories. The Restatement was a source of law that the Missouri courts adopted in the 1983 case of Earl v. McCaw.
The six categories, or types of invasion of privacy cases in Missouri law, plus the description of each type, are: These are the legal categories of invasion of privacy cases that Missouri lawyers would consider when evaluating whether to file a lawsuit.
Important Missouri Privacy Cases
Even before the enactment of the Missouri Invasion of Privacy statute, what was known as the "right of privacy" had been the subject of litigation in the state. One early case that surveyed the privacy common law was Keller v. Electronic & Mississippi Valley Railway Co., 40 F. Supp. 626 (E.D. Mo. 1941). The plaintiff in Keller took a picture of her friend who worked as a female railroad conductor and had that picture published alongside a story in one of the defendant railroad company’s newspapers. The newspaper article described women in wartime, including images of women working as firemen and conductors for railways. Although not named in the article, the photo was published as part of the article. Plaintiff was able to obtain a summary judgment pre-trial against the railroad as a matter of law. However, the defendant successfully appealed the denial of its motion for new trial after the verdict. The Eighth Circuit allowed the verdict to stand, but reversed the award for damages reasoning that it was improper to hold the railroad liable for actions that were clearly designed without an intent to harm. The case of Hamberger v. Eastman, 206 A.2d 313 (Pa.), cert. denied, 389 U.S. 1007 (1967) was cited by the Keller court and would later be cited in many Missouri cases including McClure v. Board of Educ. of City of St. Louis, 110 S.W.2d 1022, 1027 (Mo. 1937), Higgins v. Ford Motor Co., 35 F. Supp. 2d 481 (E.D. Mo. 1999), and Johnson v. McDonald’s Corp., Case No. 4:05-CV-1125, 2006 WL 2669043 (E.D. Mo. Sept. 18, 2006). In Hamberger, a company had taken a photograph of a girl sleeping on a park bench and used the photo in its magazine after obtaining consent by her mother. In that case the Pennsylvania Supreme Court found that even though the company had obtained consent the photo was "a photograph the publication of which, in the court’s opinion, a jury could find of no social value." Ultimately the issue was resolved in a settlement. The Missouri Supreme Court has also weighed in on invasion of privacy issues. For example, in the case of Woods v. Hustler Magazine, Inc., 677 S.W.2d 749 (Mo. banc 1984) the court ruled that the First Amendment did not shield two periodicals from liability under Missouri law when they had published articles that implicated the personal life of a prominent black minister. Missouri’s Courts of Appeals have handed down notable privacy decisions as well. See e.g., Crow v. Lang, 536 S.W.2d 882 (Mo. App. 1976) (Mediation privilege found applicable); Gelfand v. Shearson Hayden Stone, Inc., 622 S.W.2d 708 (Mo. App. 1981) (Discovery of ex parte communications with Board of Directors of a corporation held to be a violation of Corporation’s privilege).
How to Protect Your Privacy in Missouri
Here are some important practical tips and advice to help you stay out of trouble under Missouri’s Invasion of Privacy laws:
- No matter where you are in the state, be mindful that videotaping public areas of private locations, such as bathrooms, locker rooms, and private offices, are illegal under Missouri law.
- Be aware that many businesses now have security cameras recording inside their locations, and simply walking through the door of a bar, grocery store, or mall could mean that your image is being captured. Your behavior once inside these locations is not only a private concern; it could also affect the safety of your privacy when you leave the location. If you have a negative encounter with a security guard, employees or fellow customers, and the incident is recorded, the business may end up using the footage to publicly shame you or blackmail you. Even if you are not the one doing anything illegal, mischief might occur to unfairly place you in a bad light among friends, family, or the public in general.
- If you have any reason to think that someone might be trying to invade your privacy – such as an ex-spouse who continuously attempts to call you or appear at your home – you may want to keep any evidence of your experience – such as pictures of their car and selfies showing the time and place of your encounter – to provide valuable lead information to law enforcement.
- If you believe that your death or actions in life will be a major source of revenue for those left behind, it is a good idea to leave directions on whether you wish to keep your privacy secret after your death or otherwise public. Leaving behind instructions against invading your privacy after your death can save your children, or children’s business partners or heirs , much grief or hardship if they suddenly find themselves named in a lawsuit in Missouri over an alleged invasion of privacy.
- Make sure your home is adequately protected by camera security; note, however, that security cameras frequently capture innocuous images that can be misused against you, especially if you have children, pets, or guests. The owner of a security camera control system has the ability to edit videos to suit their own narrative.
- Always be cautious about posting, emailing or texting sensitive information, whether it be medical or financial, to low-security websites or apps. If you aren’t sending the information on a trusted website or app, it is a good idea to assume that you aren’t protecting your privacy.
- Make sure that you aren’t on a payroll-dedicated email or messaging system that doesn’t otherwise protect your information. If you have important and/or sensitive information to transmit, work or otherwise, it is a good idea to use a standard email or messaging system. Low-cost payroll methods that save companies on mail don’t provide the same level of protection, sometimes allowing other employees straight access to non-sensitive and sensitive information. For example, a "payroll chat" system might expose your emergency contact information when you are sending other sensitive messages.
- Always thoroughly read applications before clicking "I agree" or "I accept," as the documents may be allowing other people to infringe on your privacy as part of the process. Take the time to make sure you aren’t experiencing an invasion of privacy by signing on to an email service provider. Many people have unwittingly signed consents to potentially releasing their emails into the wild, or providing access to their calendars, by simply agreeing to their use terms.