INVESTIGATOR LIABILITY FOR INVASION OF PRIVACY TORTS
BY PETER A. LYNCH
Often during a fire investigation, suspicion leads an investigator to focus on the activities of several people as potentially being involved in starting or spreading a fire. The investigator should be mindful of tort liability for invasion of privacy issues. Otherwise, he may be opening a “Pandora`s box” of potential civil claims if his activities are found not to be immune. This article discusses invasion of privacy torts based on the recent California Supreme Court case of Ruth Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200 (finding subjects of a documentary television show could allege claims for invasion of privacy).
WHAT IS INVASION OF PRIVACY?
The most easily understood example of invasion of privacy is the tort of intrusion into private places, conversations, or personal matters. This tort covers physical intrusion into someone`s home, a hospital, or another place of privacy without consent. It includes an unwarranted1 sensory intrusion by visual spying, photographic spying, wiretapping, and eavesdropping.2
These intrusions are seen as personal attacks on a person`s dignity. A commentator has suggested that intruding into another`s personal affairs is the “primary weapon of the tyrant.”3 The intrusion tort has been defined as “One who intentionally intrudes, physically or otherwise, on 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.”4
HOW THE INTRUSION TORT MAY ARISE
DURING A FIRE INVESTIGATION
Assume you have completed your authorized inspection of the fire scene. Your investigation leads you to suspect one or two individuals who may have been involved in starting or spreading the fire. You know through your diligent investigation who those people are and where they are currently residing. You have in your investigative gear amplification directional listening gear that does not need a connection to phone lines. You have a video camera with a high-powered zoom lens to include an infrared night capability and other “spy” equipment. Can you use that equipment to investigate the suspects without a warrant and avoid an invasion of privacy claim? The answer may depend on if your jurisdiction follows the analysis provided by the California Supreme Court in Ruth Shulman.
RUTH SHULMAN
In Ruth Shulman, two people were injured in a car that went off the highway, overturned, and trapped them inside. The accident left one plaintiff a paraplegic. A medical transport and rescue helicopter crew came to help them. A video camera operator hired by a television show was present. The cameraman covered the recovery of the car and the nurse`s and the medic`s efforts to give the victims emergency medical care. The nurse wore a small microphone that recorded her conversations with the plaintiffs. The film and recorded audio were broadcast without the plaintiffs` permission. Plaintiffs sued alleging invasion of privacy. The California Supreme Court found they could allege an action for intrusion of privacy but not publication of private facts. The court analysis of the intrusion claim defined the necessary elements for such a claim.
The court recognized two elements of an intrusion action. Those are: (1) intrusion into a private place, conversation or matter; (2) in a manner highly offensive to a reasonable person.5
Evaluating the first requirement, the court held that examining public records, taking photographs in a public area, or observing without aids did not constitute a tort. To prove this cause of action, a plaintiff must show the “defendant penetrated some zone of physical or sensory privacy surroundings, or obtained unwanted access to data about the plaintiff.”6
A plaintiff can recover only if he establishes an objectively reasonable expectation of seclusion or solitude in the place, conversation, or data source. The court noted other cases that found no invasion related to an animal trainer`s having no expectation of privacy in a backstage area or that found a father`s interference with his son`s marriage without a physical or sensory penetration did not constitute an invasion.
The court held videotaping of the general accident scene was not an invasion of privacy because plaintiffs had no ownership or possession of the property where the rescue took place, nor did they control the premises. The press is known to attend accident scenes. Nevertheless, issues for the jury remained because filming was also done inside the rescue helicopter during the medical proceedings without the plaintiffs` permission. Further, the plaintiffs` private conversations with the nurse were recorded and played without her permission.7
The court held a patient`s private conversation with a nurse about medical treatment carried an expectation of privacy. A conversation is confidential in California if a participant reasonably expects and desires the conversation itself will not be directly overheard by a nonparticipant or recorded by any person, participant, or nonparticipant.
Hence, eavesdropping or recording a confidential communication without a warrant constitutes an invasion of privacy in California–not to mention it likely constitutes a criminal offense.8 A jury will have to decide if the plaintiff desired the communication to the nurse to be heard by her alone. The nurse`s microphone was amplified and recorded. The court noted the jury would decide if the cameraman should have perceived he might be intruding on a confidential communication.
The court then examined the offensiveness element of the intrusion. A jury would consider all of the circumstances of the intrusion–its degree, setting, and intruder`s motives and objectives. Motive was important in the Shulman case be-cause of the First Amendment pursuit of news material. The court noted the First Amendment did not immunize the press from tort liability. Information collecting done for purposes of harassment, blackmail, or curiosity is not protected. Continuous surveillance by the press may be appropriate but not a creditor of a debtor. Trespassing into a home and tapping a phone line are not justified and can be criminal offenses.9
Hidden cameras and miniature cordless and directional microphones can threaten personal privacy. Each case is determined on its facts. The court held the audiotaping and filming in the ambulance could be found to be highly offensive to a reasonable person. The court cited cases that held secretly photographing and recording a quack doctor at home after consensual access was an invasion of privacy as well as a case involving continual ambush interview attempts and attempts to intercept conversations inside a home with a directional microphone.10
PENALTIES FOR INVASION OF PRIVACY
Secretly video recording and audio recording someone`s conversations or movements in a private place likely constitutes criminal conduct.11 Further, the measure of damages in a civil suit likely includes those recoverable for emotional distress, possibly punitive damages, and compensation for all legally caused injuries resulting from the publication of material gathered through the intrusion.
Avoid the temptation to use high-tech equipment to obtain video or audio information on suspects in a place of privacy without a warrant. Otherwise, you, your agency, or the company employing may be subject to tort liability for invasion of privacy.
An investigator needs to stay current on what investigative techniques can be used without a warrant. Continuing education is a must. Before potentially violating a person`s privacy, ask yourself the following question: “Would I be embarrassed to explain to a jury why I conducted my investigation in this manner?” If the answer is yes, you probably should avoid that activity or get a warrant.
Since 1890, commentators have decried the numerous mechanical devices available to threaten the bounds of propriety and decency.12 Those concerns are magnified today because of the variety of devices available to intrude into areas normally believed to be shelters from inquiring minds. If you really need the information, you`d better get a warrant. Otherwise, you run the risk of being sued for violating a person`s privacy. n
Endnotes
1. This article`s premise is the investigator does not have a warrant approving his investigative activities.
2. Rest. 2d Torts ?B, com. b., pp. 378-379.
3. Bloustein, Privacy As An Aspect Of Human Dignity: An Answer To Dean Prosser (1964) 39, N.Y.U.L. Rev.962,973-974, (footnote omitted).
4. Rest. 2d Torts, ?B.
5. Shulman, 18 Cal. 4th at 231.
6. Id. at 232.
7. Colter v. Bank of America (1994) 28 Cal. App. 4th, 923,929.
8. California`s Invasion of Privacy Act, Pen. Code, §§ 630-637.6.
9. See footnote 8, supra.
10. Shulman, 18 Cal. 4th at 241, n. 19.
11. See footnote 8, supra.
12. Warren & Brandeis v. “Right to Privacy” (1890) 4 Harv. L. Rev. 193, 195-196.
PETER A. LYNCH is a senior member of the national law firm of Cozen and O`Connor, P.C., in its San Diego regional office. The major emphasis of his practice is the representation of individuals, companies, and insurers that arise from fire losses. He writes a monthly column on fire litigation developments for the California Conference of Arson Investigators and is the legal advisor to the San Diego County-Wide Fire and Arson Task Force.
