Intrusion Upon Seclusion

To establish a prima facie case for intrusion upon seclusion, the plaintiff must prove a highly offensive intrusion by the defendant that was either intentional or negligent and that this act both caused the plaintiff’s privacy to be violated and caused the plaintiff some measure of harm.

The laws regarding intrusion upon seclusion were established to protect any aspect of the plaintiff’s life that he can reasonably expect will not be intruded upon. See Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969).

Thus, wire-tapping the plaintiff’s phones or planting hidden cameras in the plaintiff’s home would be a clear intrusion upon the plaintiff’s seclusion. However, going through the plaintiff’s garbage might not be.

In order for an intrusion to be actionable, it has to be highly offensive to a reasonable person. Further, intrusions can be both physical, as where defendant enters plaintiff’s land, or not, as where a hidden camera is installed in a woman’s locker room. See Nader v. General Motors Corp., 25 N.Y.2d 560 (1970).

In order for the plaintiff to prove intent, he only needs to prove that the defendant intended the intrusion. Motive is immaterial. Thus, the defendant can be found liable for intrusion upon seclusion even if he did not mean to offend plaintiff by his intrusion. For example:

Carol is getting married. Carol’s friends, Nancy and Molly, install secret cameras in Carol’s home so as to get footage for a video that they will show at the wedding. In this situation, Carol has a viable cause of action against Nancy and Molly because they intentionally committed a highly offensive intrusion into her home. The fact that their intentions were good is immaterial. Further, please note that whether or not Nancy and Molly actually play the video at the wedding is immaterial because, unlike defamation, publication is not necessary to establish a viable cause of action for intrusion upon seclusion.

See Rhodes v. Graham, 37 S.W.2d 46 (Ky. 1931).

Finally, the causation element requirement is satisfied if the defendant’s conduct was the actual and proximate cause of the invasion of the plaintiff’s privacy and the damage the invasion caused.

As with most of the other torts we have covered, consent is a valid defense to a cause of action for intrusion upon seclusion. However, it is only a viable defense if the defendant’s intrusion stays within that which the plaintiff consented to. If the defendant’s actions exceed the plaintiff’s consent, the defendant loses consent as a defense. Thus, if the plaintiff consents to the defendant recording a conversation the plaintiff has with his mother and the defendant records this conversation, the plaintiff has no cause of action for intrusion upon seclusion. However, if, after the conversation with the plaintiff’s mother, the defendant secretly records every other conversation the plaintiff has for the rest of the day, the defendant will not be able to use consent as a defense.

As far as damages go, the plaintiff does not need to prove any damages or pecuniary (monetary) loss. Emotional distress and mental anguish are sufficient damages to establish a viable cause of action.