If Someone Posts Private Photos, Videos, or Documents Online, You Can Fight Back
in our last post, we discussed online defamation and what you can do about it if it happens to you. Today, I want to address the issue of online privacy and all the problems that can arise when that privacy is not respected. Now, there are two types of online privacy. One is the privacy of your data online: things like your financial information, your email login, your browsing history, your downloads, that kind of stuff.
But that’s not what I’m talking about today. Today I’m talking about a different kind of privacy: when somebody without your authorization posts or uploads private documents photographs or videos of yours. Now this type of online privacy violation typically brings to mind nude or intimate photographs and videos. But it doesn’t always have to be that it could be, for instance, a Social Security card, or a letter that you wrote to a friend or lover may contain sensitive private information. Or it could be an email describing your plans for the future of your business. All of these things are private information, and Alabama, like most states, recognizes the tort of intentional invasion of privacy.
Basically what this means is when somebody takes your private information and either uses it for their own financial benefit or recklessly or maliciously publishes it somehow, you can sue them for the damages that causes you. And as with most torts, if you can prove that this has been done to you willfully and maliciously then in addition to whatever financial or physical harm you might be entitled to recover money for, you may also asked the judge or jury to give you punitive damages. Punitive damages are extra damages that the court awards to punish the defendant for morally evil conduct.
Let’s take the most commonly reported example of this: a video of sexual activity that has been posted online without your permission. Now obviously, any sort of revealing photographs or videos of you are inherently private. Unless you are in the adult film industry, you can pretty much guarantee that if these sorts of things appear online, somebody has violated your privacy. If it was a former lover, and the video was posted for revenge or mockery, then that’s a good example of the sort of malice that would entitle you to punitive damages. If that video was posted in order to get money, then that is a great example of commercial exploitation of your private information, and that would entitle you to whatever financial benefits were wrongfully obtained using your information, and possibly punitive damages as well.
Identifying the Culprit
One of the most difficult challenges in addressing online invasion of privacy is identifying the perpetrator. Unfortunately, there are a great many websites that are not based in the United States and do not do business in the United States, and therefore are difficult to compel to respond to a subpoena. However, if you can locate the IP address of the person who posted the information, then you might be able to obtain their information through their Internet Service Provider. This is not easy. It requires that you file a lawsuit in court and submit a subpoena from that court to the Internet Service Provider, which usually must be domesticated in the home state of the Internet Service Provider. This also requires more court costs. And, of course, it will require attorneys fees. Now that doesn’t mean it isn’t worth it, because in a serious case such as nude photographs or videos, the damages could be substantial: thousands of dollars even.
But, as with any lawsuit, you will want to make sure that the person you are suing actually has money to pay you. If the person is unemployed, has no bank accounts, and has no property, then your judgment against him is not going to turn into money. And it is often impossible to hold liable the company operating the website or social media outlet where your information has been posted.
Of course, money is not the only consideration. It’s not even the first consideration. The most important thing is getting the information out of the public eye. Many websites will respect a request for removal under the Digital millennium copyright act. This is a law that protects intellectual property that is used online without authorization of the owner.
If you have been the victim of online dissemination of your private or sensitive information, then the first step you should take is documenting the extent to which your privacy has been invaded. This means gathering all of the evidence: screenshots, web addresses, URLs, IP addresses, requests for removal, page visit counts, website comments that might indicate the extent to which such information has been seen, etc.
the next thing you should do is make whatever out-of-court efforts you can to resolve the matter. This means sending written, emailed, or telephone requests for the removal of your sensitive documents, photographs, or videos. It also would be prudent to see if you can obtain the identity of the distributor or of your information without having to go to court. If you can accomplish this, it will save you a lot of money.
But the unfortunate reality is that in many cases you will have no other way to address the online invasion of your privacy then hiring an attorney and paying the money to address the matter in the courts.
If you live in Alabama and have been the victim of online invasions of your privacy, feel free to call our office at 251-272-9148.
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