Restatement (Second) of Torts §652B provides:
|“||One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.||”|
A claimant must plead and prove four elements:
- there was an unauthorized intrusion or prying into his seclusion;
- the intrusion was highly offensive to or objectionable to a reasonable person;
- the matter intruded upon was private; and
- the intrusion caused anguish and suffering.
|“||Intrusion into solitude appears to be based on the manner in which a defendant obtains information, and not what a defendant later does with the information, which is covered by the public-disclosure-of-private-facts branch.”||”|
The first element is an unauthorized intrusion or prying into the plaintiff's seclusion. The tort deals with the collection of information about an individual, rather than the dissemination of that information. The invasion itself may be a physical intrusion, such as, physically entering into a room, or the intrusion may occur by use of the defendant's senses. For example, "eavesdropping via wiretapping has been conspicuously singled out on several occasions as precisely the kind of conduct that gives rise to an intrusion-upon-seclusion claim."
“[T]he place of the occurrence is relevant to a determination of the sufficiency of the evidence of intrusiveness, [but] it is not determinative of whether an intrusion into one's ‘solitude and seclusion’ has occurred.” Comment c to the Restatement (Second) of Torts, Section 652B explains the point with the following examples:
|“||Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.||”|
This tort does not depend on publicity. "The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined."
Highly offensive to a reasonable person
The second element a plaintiff must establish is that the intrusion was highly offensive to or objectionable to a reasonable person. The Restatement (Second) of Torts states that the intrusion must be "highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object." The courts look at both how the information was obtained as well as what information was obtained.
Third party liability
A defendant who negligently permits a third party to intrude into the plaintiff's affairs may be held liable for that intrusion. The Restatement states that one is subject to liability if he permits a third person to act with his instrumentalities, knowing or having reason to know that the other is acting or will act tortiously.
Reasonable expectation of privacy
The law protects those areas of the plaintiff's life that the plaintiff can reasonably expect will not be intruded upon by one in the defendant's position. To prove this, the plaintiff must show a reasonable expectation of privacy. In determining whether a reasonable expectation of privacy exists, courts apply the two-prong test used in the Fourth Amendment constitutional context. First, an actual subjective expectation of privacy must exist. Second, the expectation of privacy must be one that is objectively reasonable.
Further, the court must determine whether the plaintiff's expectation of privacy is "one that society is prepared to recognize as reasonable." Courts have generally recognized that the expectation of privacy in one's home is objectively reasonable.
- Melvin v. Burling, 141 Ill.App.3d 786, 95 Ill. Dec. 919, 490 N.E.2d 1011, 1013-14 (1987) (full-text)(citations omitted).
- Shulman v. Group W Productions, Inc., 18 Cal.4th 200, 74 Cal. Rptr. 2d 843, 955 P.2d 469, 489 (1998)(full-text).
- Fernandez-Wells v. Beauvais, 127 N.M. 487, 983 P.2d 1006, 1010 (App. 1999)(full-text).
- Rest. (Second) of Torts §652B, comm. a.
- Id., comm. b ("The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photographs or information outlined.")
- Narducci v. Village of Bellwood, 444 F.Supp.2d 924, 938 (N.D. Ill. 2006)(full-text); Ross v. Midwest Comms., Inc., 870 F.2d 271, 273 (5th Cir. 1989)(full-text) (intrusion upon seclusion "exists only when there has been a physical invasion of a person's property or . . . eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying").
- Evans v. Detlefsen, 857 F.2d 330, 338 (6th Cir. 1988)(full-text).
- Id. (citing Galella v. Onassis, 487 F.2d 986, 994-95 (2d Cir. 1972))(full-text).
- Roe v. Cheyenne Mt. Conf. Resort, Inc., 124 F.3d 1221, 1236 (10th Cir. 1997)(full-text).
- Rest. (Second) of Torts §652B, comm. d.
- Tobin v. Michigan Civil Service Comm'n, 416 Mich. 661, 331 N.W.2d 184 (Mich. 1982)(full-text).
- See Miller v. Brooks, 123 N.C. App. 20, 472 S.E.2d 350, 354 (1996)(full-text) (surveillance camera placed in the plaintiff's bedroom); Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 502 A.2d 1101, 1118 (1986)(full-text) (a "detection device" placed on plaintiff's motel door); Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239, 242 (1965)(full-text) (concealed listening device in marital bedroom).
- LeCrone v. Ohio Bell Tel. Co., 120 Ohio App. 129, 201 N.E.2d 533, 538 (1963)(full-text).
- Restatement (Second) of Torts §877(c).
- Pearson v. Dodd, 410 F.2d 701, 705 (D.C. Cir. 1969)(full-text).
- Medical Lab. Mgmt. Consultants v. American Broad. Co., 306 F.3d 806, 812 (9th Cir. 2002)(full-text).
- Katz v. United States, 389 U.S. 347, 361 (1967) (full-text) (Harlan, J., concurring).
- Medical Lab. Mgmt., 306 F.3d at 810.
- Kemp v. Block, 607 F. Supp. 1262, 1264 (D. Nev. 1985)(full-text).
- Katz, 389 U.S. at 361 (reasoning that a man's home is, for most purposes, a place where he expects privacy); see also Weeks v. United States, 232 U.S. 383, 344 (1914)(full-text).