Intrusion Upon Seclusion Flashcards
PRONG 1
Rule
Intentional Intrusion
Physical or Otherwise
What is Physical Intrusion?
- There is entry.
- Was there Consent/Voluntary Invitation?
- If Yes=No Intrusion;
- Unless:
- Did they Go beyond Scope of Consent?
- Restricted Access Points
- Durational Limits
- Was Consent revoked?
- Notice of revocation
-
Does consent go against interests of tort’s aim [certain frauds]?
- Did the entry disrupt normal activities?
- Was it loud/Noisy?
- Intent to take private information?
- Did they eavesdrop into private or privileged information?
- Did they intend to steal Trade Secrets?
- Did the entry disrupt normal activities?
- Did they Go beyond Scope of Consent?
- If No=Trespass=Intrusion
Examples Of Consent Against Person’s Interests?
Meter reader who enters in order to spy
Business Competitor who gets into abusiness posing as customer but plans to steal trade secrets
Examples Where Consent NOT against person’s interests?
Reporter’s lying of intent
Trying to dig up dirt for court case/investigative report
Purchaser lying about having a better price elsewhere
Dinner guests who were not good actually good friends
Browser in store not actually interested in buying
Was there Otherwise Entry?
-
Types of acts
- Computer Hacking
- Making Phone calls
- Reading someone’s emails
Prong 2
Rule
(the intrusion is)
Upon the Solitude, Seclusion or Private Affairs/Concerns
[WAS THERE A REASONABLE EXPECTATION OF SECLUSION?]
Prong 2
Factors
- Factor 1: WHO IS P? [Can they reasonable expect privacy?]
- Factor 2: WHERE IS P? [Is this where they can reasonable expect privacy?]
- Factor 3: WHAT IS THE INFO?
- Factor 4: HOW DID D GATHER?
Factor 1: WHO IS P? [Can they reasonable expect privacy?]
-
Are they Public or Private Person?
- If Public Person
- Voluntary or Involuntary Public?
- Compare Jackie O as public figure and Mandarino (wearing outlandish disguise) vs. a whistleblower who is outed by a congressman
- Voluntary or Involuntary Public?
- If Private Person
- Have they done anything to make themselves public?
- Have they told people information?
- Have the demonstrated/made themselves public in any situation?
- Hypo Dancer: she did not perform in public
- Have they shared access to location/private affairs w/ others?
- If Public Person
-
Are they _Vulnerable perso_n that we want to protect?
- Disabled/Mentally ill
- Child/Elderly
Factor 2: WHERE IS P? [Is this where they can reasonable expect privacy?]
- Is it considered a Public or a Private location in these circumstances?
- What efforts made to keep the location/material private?
- What types of things are found inside?
- Hav they publicy advertised the location?
- Do they charge money for services at the location?
- Was there overzealous intrusion in a public space?
Prong 2
Factor 2
Q1
Is it considered a Public or a Private location in these circumstances?
What is the Custom or Habit for this material/location in these circumstances?
[[House: Typically used for just family—Hospitals/Ambulance: Custom is for only persons receiving medical treatment, doctors and family to be inside. Not reporters=Shulman–Accident Site: We would expect reporters to be on the scene of an accident. –Hypo/Dressing room=evaluate habit for dressing room/only for performer or does owner typically go inside? *Place to mentally prepare…]]Public Street=Least expectation of Privacy
Shulman: Anyone has access to a public ditch near highway. We would expect reporters to be there if there was an accident
Own Home=Most expectation of Privacy
Business/Other person’s home /School/Restaurant etc=Depends the most on circumstances
Psychic Hotline: In business, even in open offices, there is an expectation of some privacy/Not everything said is public.
If persons tells you they’re recording…a reality show is filming there/you know that they’ve been on a reality show
Prong 2
Factor 1
Question2
What efforts made to keep the location/material private?
- Volume of Conversation?
- Does it seem like they’re trying to keep their conversation private or not?
- Barriers?
- Berosini: Only flimsy curtain w/holes in it
- Gates, Doors, Locks, Keypads , Passwords, Memberships, Reception Desks, Security Guard, Curtains Drawn
- Destroyed?
- Ripped Up (how much/what size) Still recognizable?
- *Trash is not automatically private. Must make effort to make private (see other factors)
- Danai: Ripped up the paper but into big pieces
Resticted Access?
Notice of Restriction?
Used a key/combination
Berosini: Plenty of people had access to the backstage area
Danai: Danai did not have access to the trash room. The Managers Did. Managers also had access to room to pick up trash.
Prong 2
Factor 2
Question 3
What types of things are found inside?
- Dietemann: Non-medical stuff found inside, so not a business
Prong 2
Factor 2
Question 4
Have they publicly advertised the location?
- Public listing in phone book/online
- Sign outside
- Billboards/commercials/Online ads
Prong 2
Factor 2
Question 5
Do they charge money for services at the location?
- Dietteman: Where he didn’t charge $$ for services, less likely to be a business
Prong 2
Factor 2
Question 6
Was there overzealous intrusion in a public space?
- Used hidden wireless microphones/Hidden video cameras?
- Conversations with privileged persons?
- Medical professionals
- Proximity to a person, so as to count the money they take from the ATM
- Inside of a person’s vehicle
Prong 2
Factor 3
What is the Info?
- Is it something one would expect to be private or public?
- Financial Information
- Medical Records
- Private Emails
- ≠ A letter written to adverse party in a lawsuit and then torn up
- Something inside a Zipped Up Purse
- ≠ Something inside unclosed bag that can be observed w/o use of technology
- Photos on Iphone
Prong 2
Factor 4
How did D Gather?
- Aided by Technology? [Plus Factor]
- Unaided by Technology?
- Peeping through windows
- Searching through belongings
- Opening mail
- ≠Rummaging through trash
Prong 3
Rule
(Intrusion is)
Highly Offensive to a Reasonable Person
- Would the intrusion shock the ordinary person to the point of emotional distress?
Prong 3
Berosini Factors?
-
Degree of Intrusion [also prong 1]
- Duration of intrusion
- Repetition of intrusion
- Galella: photographing Jackie O and kids
-
Conduct + Manner [also prong 2]
- Was the conduct Unreasonably Intrusive or Truly Intrusive?
- Galella: Bribing people, romancing people
- Berosini: Filming was behind a curtain, out of the way of monkeys/berosini
- Was the conduct Unreasonably Intrusive or Truly Intrusive?
- Context [also prong 2]
- Did they have a right to be there?
- What was the victim doing?
- Was someone doing something wrong/illegal?
- Berosini: Filmer was allowed backstage
- Berosini: Was practicing a performance. Not something that if seen by others would shock the conscience
- Berosini: beating animals
-
Setting [also prong 2]
- Where did it take place?
- Motive [only prong 3]
- Get Trade Secrets/Private Information?
- To Intrude into their privacy?
- To harm a person’s reputation?
- To Publish?
- In Public interest or prurient interest?
- ≠ To document what could reasonably be heard
- This is the case with Berosini.
-
Conventions and Expectations of Victim [only prong 3]
- What is the convention of this person in this situation?
- What could they expect in this situation?
- Berosini: Could reasonably expect that someone may see/hear/or even record.
Prong 3
Reaction?
- SERIOUSLY AGGRIEVED BY CONDUCT?
- Hypo dancer: was very upset
Hypo singer: Is furious
Prong 3
1st Ammendment News Gathering Purpose?
- No Defense for news gathering, if otherwise satisfies Prongs
Anti Paparazzi Act
Rule
- Physical invasion of privacy
- Constructive Invasion of Privacy
- Inreased Damages for Physical and constructive Invasion
- Punishes those who direct solicits, actually induces or actually causes a person to violate the paparazzi law
- Applies even if no image is captured
Anti Paparazzi Act
Physical invasion of privacy?
-
Knowingly enters the land w/o permission, or Trespasses [needs a physical entry]
-
Assumes a reasonable expectation of privacy in ones home/property
- Can also be a hotel room, hospital, other places that do not have public access
-
Assumes a reasonable expectation of privacy in ones home/property
-
In order to physically invade the privacy of the P, with Intent to capture
- Only requires THOUGHT. Does not even need to attempt.
- Entering property and taking pictures of private photos
- Entering property and taking photos of person while showering
- Any type of Visual, Sound recording, or Physical impression of P [possible future technology]
-
Engaging in a personal or familial activity
- Intimate details of P’s personal life
- Interactions w/ P’s family/Significant others
- Other aspects of P’s private affairs or concern
- Physical invasion occurs in a manner Offensive to Reasonable Person
- 1.
[different standard than HORP, but courts would commonly come out the same if there is IUS + Anti Paparazi Act]
Anti Paparazzie Act
Constructive Invasion of Privacy
- Attempts to capture [NOT JUST INTENT. NEEDS ACTUAL ATTEMPT!]
- In a manner offensive to a reasonable person
- [different standard than HORP, but courts would commonly come out the same if there is IUS + Anti Paparazi Act]
- Any type of visual image, sound recording or physical impression of P
- Engaging in a personal or familial activity
- Under circumstances in which the P had a reasonable expectation of privacy
- Through use of visual, auditory enhancing device
- Wiretap/Zoom lens….
- Regardless of physical trespass
- If this image, sound recording or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used. [Translation: to get this recording, the person needed to have used a device (couldn’t just see w/ naked eyes and then started recording)
