An intrusion on seclusion claim is a special form of invasion of privacy. It applies when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another. In most states, to make out an intrusion on seclusion claim, a plaintiff must generally establish 4 elements:
With respect to the first element of an intrusion claim -- intentional invasion into the private affairs of another -- courts generally require that the intrusion take the form of a "physical trespass." This can be met literally, by physically entering onto private property, or by an electronic or optical intrusion, such as using zoom lenses or highly sensitive microphones to photograph or record a person who has a reasonable expectation of privacy. A court would consider this a "physical trespass" if your use of ultra-powerful or highly sensitive equipment was the only way you were able to obtain your information or recording.
The second element requires that the actions giving rise to a claim must be offensive to a reasonable person. This requires more than mere discomfort or embarrassment. For example, barging in on someone in the bathroom and photographing them using the facilities would be offensive to a reasonable person while taking a picture of them standing at the mirror combing their hair likely would not be offensive.
The third element requires that the intrusion involve a private matter. Generally speaking, if you've intruded into someone's seclusion in a place they expect privacy (e.g., a bathroom or their bedroom) or while they are engaged in an activity that most reasonable people would expect to be private (e.g., intimate contact with another) this element will be met.
The fourth element requires that the intrusion must have resulted in mental anguish or suffering for the person whose privacy was invaded. This suffering can come from surprise, fright, or even anger at having been disturbed. In the case of surreptitious invasions, it can also come from the plaintiff finding out, after the fact, that his or her privacy has been invaded. The degree of anguish or suffering the plaintiff experiences will determine the amount of damages he or she is entitled to if the other elements of an intrusion claim are established.
Keep in mind that consent is typically one of your strongest defenses to an intrusion claim. Consent can often be gained expressly, by someone specifically telling you that you can photograph or collect private information about them (which you should get in writing), but can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and photography equipment. If consent is required, however, you must obtain it from someone who is legally able to give it. Permission from a child or mentally handicapped person is unlikely to be valid; in those situations, you should seek consent from the appropriate parent or guardian.
Each state has its own definition of what constitutes intrusion upon seclusion. You should consult the state sections listed below to determine whether your specific state recognizes intrusion on seclusion and, if so, how it defines what is necessary for a claim. (Note that the guide does not include every state at this time.)
Intrusion law in California does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. California courts have adopted the elements of a claim for intrusion outlined in the Restatement (Second) of Torts. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463 (1986).
California courts have recognized a more expansive definition of intrusion, however, that includes situations involving the use of deception to obtain private information. For example, a court allowed an intrusion claim where the defendant misrepresented his relationship with the plaintiff to obtain private information from her foster mother. See Taus v. Loftus, 40 Cal.4th 683, 725 (2007) (available at the Supreme Court's website after entering the citation information).
California courts also recognize some additional limitations on your liability for intrusion. With respect to the first element of a claim -- intentional invasion into the private affairs of another -- California courts have upheld your right to photograph a public figure even if he or she is on private property so long as the subject is in full public view. Being in full public view eliminates any reasonable expectation of privacy that the subject may have.
In California, the plaintiff must prove that you intended to intrude on the seclusion of another. Marich v. MGM/UA Telecommunications, Inc., 113 Cal. App. 4th 415 (2003)(holding that you must desire, or intent, to cause the consequences of your actions or believe that the consequences are substantially likely to follow). In other words, if you were merely scanning the horizon with your binoculars and inadvertently saw into someone's bedroom, this mistaken intrusion into an area of seclusion of another will not likely give rise to liability.
Other Potential Bases for Liability
If you are photographing or recording someone in California, you should be aware that California also has an Anti-Paparazzi Statute: California Civil Code, §1708.8. The statute prohibits you from trespassing onto another person's land or property with the express intention of procuring any kind of visual image, including but not limited to photographs, visual images, sound recordings or other images of a person engaging in a personal or familial activity.
Under this statute, you can also be found liable for invasion of privacy for photographing or video taping a person in a manner that a reasonable person would find offensive regardless of whether you have physically approached the subject. This would include using high power lenses or ultra-sensitive microphones to gain access to a place where a person has a reasonable expectation of privacy. These would all be cases where, without actual physical trespass, you would not have been able to capture the image of the person without the use of special equipment.
You should be especially cautious about entering the private property of another when covering the actions of police or government officials (these are often called "ride-alongs"). Even with police or other government permission, you will likely still be liable for intrusion if you enter a private home without the consent of the homeowner herself. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1487-88 (1986).
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In California, you should also consider:
Intrusion law in the District of Columbia does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information. District of Columbia courts have only focused on the first three elements of the claim as there have yet to be any cases that deal specifically with anguish or suffering.
If you gather news or information in Washington, DC, you should be aware that gathering data from FBI files may be held to a different standard than gathering information from other publicly available sources. For example, a court held that gathering information from FBI files could constitute a claim for intrusion because information contained in FBI files, although sometimes available through public records, are not as easily accessible. Alexander v. FBI, 971 F. Supp. 603 (D.D.C. 1997). The court also reasoned that this type of information is highly personal and private and its disclosure could be considered offensive to a person of ordinary sensibilities.
Intrusion law in Florida does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Wolfson v. Lewis, 924 F. Supp. 1413, 1419 (E.D. Pa. 1996) (interpreting Florida law), which highlights Florida's recognition of intrusion and shows its adoption of the elements of a claim described in the Restatement (Second) of Torts. As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Other Potential Bases for Liability
Florida also has a stalking statute (Florida Statute 784.048) that prohibits engaging in a pattern of conduct directed at a specific person that causes substantial emotional distress to that person. If you violate this statute, you could be held liable for stalking and your actions could be viewed as an intrusion.
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Florida, you should also consider:
Intrusion law in Georgia does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Cabaniss v. Hipsley, 151 S.E.2d 496, 499-500 (Ga. App. 1966). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
With respect to the first element of a claim -- invasion into the private affairs of another -- Georgia requires that the intrusive conduct must be intentional. See Anderson v. City of Columbus, 374 F. Supp. 2d 1240, 1246 (M.D. Ga. 2005). However, a Georgia court has also held that physical intrusion is not always required, finding liability where the defendant repeatedly followed the plaintiff. See Anderson v. Mergenhagen, 642 S.E.2d 105, 110 (Ga. App. 2007).
Other Potential Bases for Liability
If you are photographing or recording someone in Georgia, you should be aware that Georgia has a statute that makes it unlawful for any person, through the use of any device, without the consent of all persons being observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view. This statute just highlights that in addition to your physical trespass, the use of any device to intrude, whether it be a camera, microphone or video, can impose liability in Georgia. See O.C.G.A Section 16-11-62(2).
The Georgia statute specifically states that liability for intrusion does not require that photographs be developed or shown to others to complete the invasion of privacy. The statute is only concerned with the intrusive activity engaged in to obtain the photograph. See O.C.G.A Section 16-11-62(2).
Intrusion law in Illinois does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Burns v. Masterbrand Cabinets, Inc., 874 N.E.2d 72, 75-77 (Ill. Ct. App. 2007). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Illinois courts do, however, differ slightly in describing the second element of a claim, requiring that the intrusion must be "offensive or objectionable." It does not appear that this change materially affects the outcome of cases.
The Seventh Circuit Court of Appeals, which covers federal courts in Illinois, has hinted that there may be a First Amendment privilege to intrude with respect to matters of public concern. See Desnick v. American Broadcasting Co., 44 F.3d 1345 (7th Cir. 1995). Using this logic, a federal district court judge stated that if the media could show that their intrusive activities were necessary to expose improper prison conditions, a highly newsworthy and publicly concerned topic, that could be a possible defense to intrusion. See Huskey v. NBC, 632 F.Supp. 1282, 1291 (N.D. Ill. 1986).
Intrusion law in Indiana does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Massachusetts courts have not formerly adopted a common law claim for intrusion. Instead, Massachusetts has a statute that defines intrusion as an "unreasonable, substantial or serious interference with privacy." M.G.L. c. 214, Section 1B. Although the courts in Massachusetts formerly use the Massachusetts statute as their guide for intrusion claims, they do look to the general rule outlined in the Restatement to evaluate an intrusion claim. See Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567 N.E.2d 912, 915 (1991). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
In addition to gaining explicit consent from the person you wish to photograph or record, Massachusetts courts have extended this consent to other individuals under certain circumstances. For example, in Bevis v. United States, 971 F.2d 744 (unreported), a hospital employee escorted a photographer though the facility and gave permission for the photographer to take pictures. Although patients did not specifically give consent to the photographer, the court held that a claim for intrusion could not succeed because the consent from the hospital extended to its patients.
Intrusion law in Michigan does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See DeMay v. Roberts, 9 N.W. 146 (Mich. 1881) (recognizing the intrusion tort); Duran v. Detroit News, 504 N.W.2d 715 (Mich. Ct. App. 1993) (applying intrusion to the media and laying out the elements). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
The only major difference that distinguishes Michigan's application of intrusion from the general elements applied by other states is that Michigan requires the method of intrusion to be "objectionable", rather than offensive. It is unclear if this makes a practical difference, but it is possible that a court could find conduct to be objectionable, but not necessarily offensive.In addition, Michigan has clarified that a defendant will not be liable for intrusion if he or she has a legitimate interest in the subject matter. See Saldana v. Kelsey-Hayes, 443 N.W.2d 382, 384 (Mich. Ct. App. 1989). This added defense deals with the second element of the claim that requires that the matter be private. Although there are no reported cases as of yet specifically geared to the media, this defense shows that a plaintiff's privacy is not absolute and can be subject to the legitimate interest of others.
Intrusion law in New Jersey does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 17 (N.J. 1992). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Corporations, partnerships, and unincorporated associations have no right of privacy under New Jersey law and therefore cannot assert a claim for intrusion upon seclusion.
Other Potential Bases for Liability
If you are photographing or recording someone in New Jersey, you should be aware that New Jersey imposes criminal (N.J.S.A 2C:14-9) and civil (N.J.S.A. 2A:58D-1) liability for photographing or filming or disclosing any filming or photography of "another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed."
New York courts do not recognize intrusion upon seclusion claims. See Howell v. New York Post Co., 612 N.E.2d 699, 703 (N.Y. 1993).
Courts in New York do, however, recognize causes of action for trespass and other illegal acts committed during the course of newsgathering. See the section on Entering the Property of Others for more information about trespass and the other risks you may encounter.
Intrusion law in North Carolina does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Miller v. Brooks, 472 S.E.2d 350, 353-55 (N.C. Ct. App. 1996). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Always attempt to get the consent of any parties you are filming or whose privacy you might otherwise be intruding into. Consent from the subject will likely give you a strong defense against an intrusion claim. See Miller v. Brooks, 472 S.E.2d 350, 354-55 (N.C. Ct. App. 1996).
Intrusion law in Ohio does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Sustin v. Fee, 431 N.E.2d 992, 993-94 (Ohio 1982). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
In addition, Ohio has gone further with the first element in stating that the intrusive conduct must be intentional. Negligent intrusion is not sufficient. See Filotei v. Booth Broad. Co., 1981 Ohio App. LEXIS 10461 at *6. At least one Ohio court has also noted that intrusion includes the making of persistent and unwanted telephone calls. See Clark v. Clark, 2005-Ohio-5252 (Ohio Ct. App. 2005).
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Ohio, you should also consider:
Intrusion law in Pennsylvania does not differ signicantly from the law described in the General Elements of an Intrusion Claim section of this guide. See Harris v. Easton Pub. Co., 483 A.2d 1377 (Pa. Super. Ct. 1984). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
However, persistent "hounding, harassment and unreasonable surveillance" may constitute intrusion in certain circumstances, even if conducted in a public or semi-public place. See Wolfson v. Lewis, 924 F.Supp. 1413 (E.D. Pa. 1996).
Other Potential Bases for Liability
You should also be aware that Pennsylvania also has criminal anti-harassment law, see 18 PA C.S.A. 2709, and an anti-stalking law, see 18 PA C.S.A. 2709.1. Under these laws, following a person under circumstances demonstrating an intent to cause substantial emotional distress could result in criminal liability.
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Pennsylvania, you should also consider:
Virginia does not recognize intrusion claims. See WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (2002). However, there are several related causes of action that exist in Virginia.
First, it is a crime in Virginia to knowingly and intentionally videotape, photograph, or film any nonconsenting person if that person is nude or in state of undress so as to expose the genitals, pubic area, buttocks or female breast in a location where the person would have a reasonable expectation of privacy. See Va. Code. Ann. 18.2-386.1
Second, Virginia has an anti-stalking statute, which makes it a crime to "on more than one occasion engage in conduct directed at another person with the intent to place, or when [you know] or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person's family or household member." Va. Code. Ann. 18.2-60.3.
Intrusion law in Washington does not differ signicantly from the law described in the General Elements of an Intrusion Claim section of this guide. See Doe v. Gonzaga University, 143 Wn.2d 687, 705-06 (2001).
As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.