Friday, May 23, 2008

The Privacy Torts

Local elected official is accused of rape.  Local elected official resigns his office.  Local elected official claims he can exonerate himself.  Local elected official produces a videotape, surreptitiously taken, of the encounter in question.  The videotape allegedly reveals a consensual sexual encounter.  The accuser is then accused of filing a false claim.

However, to exonerate himself, local elected official had to reveal that he had set up a multi-camera recording system in his house.  He further had to reveal that he had been using this system to record his encounters with, among others, multiple prostitutes he had been hiring.   

There has been an investigation into whether the recording violated any criminal statutes.  Because my crimprof colleague, Wes Oliver, was asked to talk to a local news channel about the case, he questioned me about the torts angle.  I've been researching William Prosser lately, and the privacy torts come to mind.

In his article, Privacy, 48 Cal. L. Rev. 383 (1960), Prosser argued that invasion of privacy was not one tort, but four:  1. Intrusion upon the plaintiff's seclusion or solitude; 2. Public disclosure of embarrassing private facts; 3. Publicity which places the plaintiff in a false light in the public eye; and 4. Appropriation, for the defendant's advantage, of the plaintiff's name and likeness.  This division has been widely accepted in the jurisdictions (some of which have codified the privacy torts). 

Would any of the privacy torts be available to those taped by the local elected official?  It seems to me that three and four aren't even colorable.  There's no false impression created by the fact that these people were having sex with the local elected official.  Furthermore, appropriation cases tend to deal with a financial advantage (such as using the plaintiff's name or likeness to advertise a product).  There are no allegations that the local elected official tried to sell or otherwise make money from the videos. 

As for the second tort, public disclosure of embarrassing private facts, I'm not aware that there was a public disclosure of any of the encounters other than the encounter with the accuser.  Of course, the accuser put that particular encounter at issue.

That leaves intrusion upon seclusion.  In these cases, the intrusion must be offensive or objectionable to a reasonable person and the thing into which there is prying must be private.  Surreptitiously videotaping sex strikes me as fitting both of these criteria.  Indeed, Prosser cites cases in which the intrusion was accomplished by wire tapping and microphones.  For a modern case on-point, see Lewis v. LeGrow, 670 N.W.2d 675 (2003).

--CJR   

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Comments

It is hard to believe there is a controversy here. It can only be explained by the love of the lawyer for the criminal, and animus toward anyone with assets. The Supreme Court passed an unauthorized Constitutional Amendment called, the right to privacy.

I assume the politician is a lawyer. I love the lawyer, and hope this helps.

The Law of Necessity permits all manner of criminal acts. It trumps the Constitution and ratified international treaties. The taping kept the politician from getting abducted by the government, a wholly owned subsidiary of the lawyer hierarchy, then put in a cage. It is excused because his civil rights, his freedom, trump tort law and lawyer rent seeking.

It is also against the policy of most state supreme courts to reward a crime with a civil settlement. The prostitutes exempted themselves from any civil damages by their relevant criminal act. The one making the accusation also filed a false report, a second crime after prostitution.

Lastly, does someone who arrives at some location, takes credit cards, and has wanton sex, does she have a reasonable expectation of privacy, the right to be left alone, the right to have her home be her castle? She visited someone else's home. Unless the recording was sold widely (appropriation), I think not. If it was for his private use, is that fair use, if an appellate court ever gets to decide that?

If one suspects a baby sitter of rough behavior with the baby, if a raccoon is stealing from the kitchen via some unknown hole in a wall, should the owner of the property with hidden cameras have to pay out in a privacy tort to the perpetrators of these crimes? Only an extremely, pro-plaintiff biased tort prof, indoctrinated by extreme pro-plaintiff propaganda, would even ask.

The out of control, biased, pro-plaintiff extremist, California Supreme Court enriched the sleazy, but not criminal, plaintiff in this decision:

http://lw.bna.com/lw/19990713/s059692.htm

The recording was done at the place of work of the plaintiff, rather than at the property of the defendant.

The Electronic Privacy Foundation reviews the legal arguments against this use here:

http://epic.org/privacy/nelson/epic_nelson_amicus.pdf

Posted by: Supremacy Claus | May 23, 2008 12:16:07 PM

From Lewis v Legrow:

"Lewis presented the testimony of her gynecologist, Dr. Sheryl Hinton, who noted that Lewis was suffering from posttraumatic stress syndrome because of the videotaping."

Is PTSD a female organ disorder? How is Dr. Hinton qualified to make this diagnosis?

"However, defendant testified that his house was broken into and ransacked in September of 1998. Because clothes and other gifts that defendant's then girlfriend had given him were missing, defendant believed that it was she who had broken into his house. Defendant also believed that whoever broke into
his house stole the videotapes and placed one of them on Shemanski's door."

This has the same odor as the burglar who sued the owner after falling through the skylight. The plaintiff committed not just a crime, but a crime and the tort itself of publication. The plaintiff burglarizes the home, steals the tapes, and appropriates. Now the defendant has to pay, the court is saying.

"I wake up in the middle of the night, you know, I wake up probably two, three o'clock in the morning . . . just wide awake like, "Oh, my God, something's
wrong," and just like, "What's going on?" . . . . Just before the tape came out I—I started a new job and . . . I know that I haven't been a hundred percent [at this new job] 'cause it's a distraction, but when you sit down at your computer and I start thinking about it and I have—have a hard time concentrating. . . . I find myself not being able to remember things. . . . I've been very stressed about it. . . . I think this part of the reason why, you know, I don't sleep good at night."

Oh, magosh, does ditziness meet criteria for emotional distress?

Posted by: Supremacy Claus | May 24, 2008 6:20:35 AM

I know this is a torts, not a ConLaw site. However, if a court cites Prosser, or a Restatement, or a law review article, or a law blog, or any other extra-governmental, unauthorized, extra-legal authority, it is a violation Article I Section 1, or a state equivalent. The entire decision should be void per se for insurrection against the Constitution, a crime, and for violation of the oath in the Judiciary Act of 1789.

""I, A. B., do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States. So help me God."

Posted by: Supremacy Claus | May 25, 2008 11:10:53 AM

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