VOLUME I Chapter 3 Employee Reputation, Privacy and Dignity

• Jurisdiction: South Carolina

Chapter 3 Employee Reputation, Privacy and Dignity D. Michael Henthorne Sara E. McCreary Ogletree, Deakins, Nash, Smoak & Stewart, PC

I. Introduction

Over the last few decades, the word "privacy" has taken on a new level of significance and depth of meaning. The layperson's assumption of what constitutes privacy has driven the law to formulate and accommodate newer, more comprehensive definitions. Employees highly value their basic constitutional right to privacy and firmly believe this right extends to the workplace. However, employees often do not realize that privacy rights on the job are much more limited than those at home. Employees also are reluctant to realize that management faces a growing dilemma regarding privacy issues. Companies feel the need to address anything that adversely affects profits, sales, and costs — such as employee theft, low productivity, and workplace misconduct. Frequently, this translates into increased security, background checks, and surveillance of the workplace.

The law has been slow to develop in the area of workplace privacy. Many courts resort to applying traditional tort principles to workplace invasion of privacy claims. South Carolina first recognized the tort of invasion of privacy in 1940. The South Carolina Supreme Court defined a person's right to privacy as "the right to be let alone; the right of a person to be free from unwarranted publicity."¹ The court recognized that the violation of this right under certain circumstances entitles the injured person to recover damages in tort.²

A violation of the right to privacy has evolved into four distinct causes of action: (1) unreasonable intrusion upon the plaintiff's seclusion, or solitude, or into her private affairs; (2) public disclosure of true, embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation of plaintiff's name or likeness for commercial purposes.³

II. Invasion of Privacy in South Carolina

In South Carolina, courts have refined the privacy doctrine and currently recognize three causes of action: (1) the publicizing of one's private affairs with which the public has no legitimate concern; (2) the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities; and (3) unwarranted appropriation or exploitation of one's personality.⁴ To date, no South Carolina case has recognized the tort of a false light invasion of privacy.⁵The interplay of individual privacy rights in the private workplace raises unique legal issues. Most of South Carolina's cases involving privacy in the employment setting fall into either the first or the second categories of the recognized privacy torts: publication of private affairs or wrongful intrusion.

A. Publication of Private Affairs

For a plaintiff to be successful on a publication of private affairs claim, a plaintiff must show five elements:

1. A public disclosure;
2. which concerns private facts about the plaintiff;
3. in which there is no legitimate public interest;
4. which is highly offensive; and
5. which is likely to cause serious mental injury to one of ordinary sensibilities.⁶

The defendant must intentionally disclose facts in which there is no legitimate public interest, since there is no right of privacy in public matters.⁷ Intent is proved by showing that the defendant knew or should have known the result would follow from the act.⁸ Establishing intent does not require showing deliberation, purpose, motive, or malice.⁹

The gravamen of the tort of wrongful publication of private affairs is publicity, as opposed to mere publication.¹⁰ Therefore, the disclosure of private facts must be a public disclosure, not merely a private one. Publicity must consist of more than a communication to a single individual or to a small group of people.¹¹ However, publicity to a single individual or to a small group of people may satisfy this element if there is an associated breach of contract, trust, or other confidential relationship.¹² The South Carolina Court of Appeals further elaborated on the principle of "publication" versus "publicity" in Swinton Creek Nursery v. Edisto FarmCredit:

It is an invasion of his rights to publish in a newspaper that the plaintiff does not pay his debts, or to post a notice to that effect in a window on the public street, or to cry it aloud in the highway, but not to communicate the fact to the plaintiff's employer or to any other individual, or even to a small group, unless there is some breach of contract, trust or confidential relation which will afford an independent basis for relief.¹³

In Wright v. Sparrow, an employment law case, the South Carolina Court of Appeals required that the publication of the private facts be to a large number of persons.¹⁴In Wright, the employee alleged an expectation of privacy in matters contained in her personnel file.¹⁵ She claimed that the employer breached this expectation of privacy when certain facts in the file were publicly discussed by two high level supervisors and their secretary.¹⁶ Not only did the court of appeals find that this discussion did not amount to public disclosure, but the court also rejected the invasion of privacy claim entirely stating, "Liability for invasion of privacy does not arise from communication to a single individual or a small group of people absent a breach of contract, trust, or other confidential relationship."¹⁷

The publication also must be made by the defendant in order to be actionable. The court of appeals in Snakenberg v. Hartford Casualty Insurance Co. explained that "the defendant must intentionally disclose facts in which there is no legitimate public interest."¹⁸ In Brown v. Pearson,¹⁹ the South Carolina Court of Appeals addressed a group of parishioners' complaint of invasion of privacy.²⁰ The parishioners appeared before a church committee, alleging sexual harassment by their pastor.²¹ The committee, which was responsible for receiving such allegations, heard the parishioners' complaints.²² The committee members only discussed the allegations within "the official channels of the local church" and with "those charged with dealing with such allegations."²³ The court rejected the parishioners' invasion of privacy claim, as the only publicizing was done by the parishioners themselves.²⁴

The invasion also must involve an area of personal privacy or private facts. In Corder v. Champion Road Machinery International Corp.,²⁵ the plaintiffs alleged an invasion of privacy because the employer, through its agents and servants, unlawfully told them that they would be fired unless they withdrew their workers' compensation claims.²⁶Additionally, the employer mailed the plaintiffs letters notifying them of their termination.²⁷The South Carolina Court of Appeals found that neither of these acts intruded into an area of personal privacy.²⁸ Thus, since the plaintiffs failed to plead an essential element of the tort, the court disallowed their claim for invasion of privacy.²⁹ In Rycroft v. Gaddy, the court of appeals further explained, "When a plaintiff bases an action for invasion of privacy on 'intrusion' alone, bringing forth no evidence of public disclosure, it is incumbent upon him to show a blatant and shocking disregard of his right, and serious mental or physical injury or humiliation to himself resulting therefrom."³⁰

While South Carolina courts have yet to clearly define what constitutes public or general interest, the courts have said that it does not mean mere curiosity and that newsworthiness is not necessarily the test.³¹ In Hawkins v. Multimedia, Inc.,³² the South Carolina Supreme Court let the jury decide whether the identity of the teenage father of an illegitimate child was an issue of legitimate public or general interest.³³ However, in Meetze v. Associated Press,³⁴ the South Carolina Supreme Court held as a matter of law that the birth of a child to a twelve-year-old mother one year after her marriage was a matter of public interest.³⁵Additionally, the court in Doe v. Berkeley Publishers³⁶ held that the commission of a violent crime between inmates at a county jail was a matter of public significance.³⁷ Ordinarily, whether an occurrence meets the test of legitimate public or general interest is a question of fact for the jury; however, under some circumstances it may be a question of law for the court.³⁸ The courts in Meetze and in Doe noted, that under South Carolina state law, if a person, willingly or unwillingly, becomes an actor in an event of public or general interest, then the publication of that person's connection with such an occurrence is not an invasion of that person's right to privacy.³⁹

In general, South Carolina courts apply the same invasion of privacy analysis to claims in the employment arena. In Wilson v. Wood, the South Carolina Court of Appeals held that an employee failed to prove a claim for invasion of privacy, as her termination did not constitute the public disclosure of private facts.⁴⁰ In Wilson, the employer terminated plaintiff when she refused to resign after it became public that she was a witness in a state murder prosecution.⁴¹ Plaintiff sued, claiming that her discharge constituted the public disclosure of private facts.⁴² The court found that plaintiff "failed to establish any genuine issue of material fact indicating that [the employer] wrongfully publicized any private facts about [her] that would give rise to any type of invasion of privacy cause of action."⁴³

Additionally, to succeed on a claim for wrongful publication of private facts, the "disclosure must be such as would be highly offensive and likely to cause serious mental injury to a person of ordinary sensibilities."⁴⁴ A plaintiff must show "a blatant and shocking disregard of his rights, and serious mental or physical injury or humiliation to himself resulting therefrom."⁴⁵

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