Intrusion Upon Seclusion


Torts/Invasion of Privacy.  “Intrusion upon seclusion” or “intrusion into private affairs” is a tort designed to address acts of intrusion and other interferences with a person’s “zone of privacy.”  The tort is somewhat similar to the tort of trespass, but while a trespass claim is designed to protect a plaintiff’s property interests, an intrusion upon seclusion seeks to protect plaintiff’s mental and psychological well being.

The Restatement defines the tort as follows:

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.

Restatement of the Law, Second, Torts, at § 652.

The Elements

The elements of a claim for intrusion upon seclusion are:

  1. Intentional intrusion into a place, conversation, or matter as to which the plaintiff had a reasonable expectation of privacy;
  2. The intrusion was “highly offensive” to a reasonable person;
  3. The plaintiff was harmed by the intrusion; and
  4. The defendant’s conduct was a substantial factor in causing the plaintiff’s harm.

The Reasonable Expectation of Privacy Element

Sanders v. American Broadcasting Companies, Inc., 20 Cal. 4th 907, 914–915 (1999):

“The first element [of an intrusion upon seclusion claim] is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place. Rather, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.”

Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286-287 (2009):

“As to the first element of the common law tort [of intrusion upon seclusion], the defendant must have penetrated some zone of physical or sensory privacy or obtained unwanted access to data by electronic or other covert means, in violation of the law or social norms.  In either instance, the expectation of privacy must be objectively reasonable . . . [T]his court linked the reasonableness of privacy expectations to such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred.”

Medical Laboratory Manag. v. American Broadcasting Companies, Inc., 306 F.3d 806, 812-813 (9th Cir. 2002):

“The Restatement (Second) of Torts § 652B, which sets forth the tort of intrusion upon seclusion, states: ‘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.’ Rest. (2d) Torts § 652B. In a comment to § 652B, the Restatement indicates: ‘The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.’  Rest. (2d) Torts § 652B, cmt. c. ‘There is likewise no liability unless the interference with the plaintiff’s seclusion is a substantial one, of a kind that would be highly offensive to the ordinary man, as the result of conduct to which the reasonable man would strongly object.’ Rest. (2d) Torts § 652B, cmt. d.  Courts have interpreted § 652B to require a plaintiff to prove (1) an intentional intrusion into a private place, conversation, or matter (2) in a manner highly offensive to a reasonable person. To prevail on the first prong, the plaintiff must show (a) an actual, subjective expectation of seclusion or solitude in the place, conversation, or matter, and (b) that the expectation was objectively reasonable.”

The “Highly Offensive” Element

Hernandez v. Hillsides, Inc., 47 Cal.4th 272, 287 (2009):

“The second common law element [of a claim for intrusion upon seclusion] essentially involves a policy determination as to whether the alleged intrusion is highly offensive under the particular circumstances.  Relevant factors include the degree and setting of the intrusion, and the intruder’s motives and objectives. Even in cases involving the use of photographic and electronic recording devices, which can raise difficult questions about covert surveillance, California tort law provides no bright line on`offensiveness’; each case must be taken on its facts.”

Medical Laboratory Manag. v. American Broadcasting Companies, Inc., 306 F.3d 806, 812-813 (9th Cir. 2002):

“In determining whether a jury could reasonably find an alleged intrusion highly offensive, we have previously considered the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.  Although no Arizona case indicates what sort of conduct constitutes a highly offensive intrusion, the illustrations in the comments to the Restatement (Second) of Torts § 652B suggest that it must be an exceptional kind of prying into another’s private affairs. See Rest. (2d) Torts § 652B, cmt. b. (offering the following examples: (1) taking the photograph of a woman in the hospital with a rare disease that arouses public curiosity over her objection, and (2) using a telescope to look into someone’s upstairs bedroom window for two weeks and taking intimate pictures with a telescopic lens). Moreover, when a member of the print or broadcast press commits an intrusion in order to gather news, the public’s interest in the news may mitigate the offensiveness of the intrusion.”

Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1483-1484 (1986):

“While what is ‘highly offensive to a reasonable person’ suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of “offensiveness” which must be made by the court in discerning the existence of a cause of action for intrusion.  There is little California case law based upon facts showing actual physical intrusion to assist us in making this determination, probably because even today most individuals not acting in some clearly identified official capacity do not go into private homes without the consent of those living there; not only do widely held notions of decency preclude it, but most individuals understand that to do so is either a tort, a crime, or both.  It would seem, however, that degree remains an important factor to be considered in determining ‘offensiveness’; a ‘party-crasher’ might not, under some circumstances, be regarded as a major tortfeasor, while an intruder upon highly personal, intimate activities or events might very well be. One of the early cases in this country, for example, awarded damages against a person who intruded into a place where a woman was giving birth to a child.  That was considered ‘highly offensive.’  There are other areas involving intimate conduct where intrusion would be regarded as actionable at law. A court determining the existence of ‘offensiveness’ would consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.”

The Damages Element

Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1484 (1986):

“[T]he damages flowing from its invasion logically would include an award for mental suffering and anguish.”

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