Embed Size (px)
Citation preview
Paparazzi and the Right to Privacy: Intrusion Upon Seclusion
Dylan Mombach Entertainment Law Seminar
Fall 2014
2
Imagine the following hypothetical:
Celebrity Carrie Cartwright (“Carrie”) is a 29-year-old Hollywood A-lister who has a
vacation home on Lake Michigan in Highland Park, Illinois. She grew up in a small town
in West Virginia and always performed for friends and family as a child. She knew early
on that she wanted to become an actress, and when she graduated high school she moved
to Los Angeles to make it big in the movie industry. Carrie eventually worked her way
from appearances in a few local commercials, to guest spots on television shows, to
starring in movies with Hollywood’s top actors, including Brad Pitt, Jennifer Aniston,
and Jennifer Lawrence. She has one child, an eleven-year-old daughter named Casey,
from a prior marriage with Brad, whom she dated in Los Angeles before her career took
off. Brad, however, could not handle Carrie’s fame and the lifestyle that came with it, so
he left her alone with Casey. Brad was particularly annoyed with Carrie’s lack of privacy,
and told Carrie that he could not live his life in the public eye like she did. Carrie often
throws lavish parties at her vacation house on Lake Michigan, and she invites all of her
famous A-list friends to fly to Chicago to join her.
What many do not know about Carrie is that she is not as perfect as she appears on the
big screen or in magazines. When she was 20-years-old, she was diagnosed with a mild
form of bi-polar disorder, for which she takes a small dosage of medicine on a daily
basis. In addition, she has struggled with over-drinking as a result of her husband’s
leaving her in October of 2012. Currently, Carrie has both of her issues under control.
She takes her medicine for her bi-polar disorder and has shown no signs of her condition
3
worsening. To cope with her tendency toward over-drinking, she has limited her alcohol
intake to a maximum of four drinks a week.
On August 24, 2014, a media reporter, Randall Reed (“Randall”), who works for a
national magazine in Chicago, The Hollywood Update, was watching one of Carrie’s
large house parties from a hill adjacent to Carrie’s property on Lake Michigan. Randall
was not on Carrie’s private property, but he was able to take photographs from the top of
a hill that is next to Carrie’s estate. The hill was public land, owned by the State of
Illinois. Walkers, hikers, and teenagers interested in getting a look at Carrie’s extravagant
house and backyard frequented the hill. Randall’s current location, on the northeast tip of
the hill, gave him a clear view into Carrie’s backyard, despite her having a 10-foot-tall
fence around the perimeter of her property. From his vantage point, Randall was able to
take photographs of Carrie and her friends by the pool, drinking and laughing. Despite
these photographs, Randall knew that he needed to get closer because the zoom on his
camera was not allowing him to see enough physical detail. Furthermore, Randall’s
position on the hill prevented him from getting a clear vantage point of Carrie when she
interacted with guests in certain areas of the backyard.
To get better photographs, Randall walked down the hill adjacent to Carrie’s house and
approached her fence. When Randall was on the hill, Carrie had left his line of vision
when she went with a male friend of hers into an alcove in the southeast corner of her
yard. Randall had done research before this outing and read that Carrie had a private hot
tub in her backyard where she and her friends often engaged in illegal activities. Randall
4
could not see a hot tub in any part of Carrie’s backyard, so he presumed that it must be
located in the alcove. The inside of the alcove was not visible from any angle on the hill
adjacent to Carrie’s property. Carrie was rumored to have spent approximately $15,000 to
ensure that the alcove was made of the finest materials and out of the view of media
helicopters that might fly overhead. Randall knew that whatever was going on in that
alcove, he wanted a photograph of it. He walked up to Carrie’s fence to assess whether or
not he could climb it in order to get photographs of what was going on in the alcove.
Carrie’s fence was made of solid, tightly woven panels of wood that did not allow
Randall to see into Carrie’s backyard. Randall decided to climb Carrie’s fence like a
ladder. Luckily, he had climbed on the correct panel because once he peered over
Carrie’s fence he had a clear, albeit narrow, view into Carrie’s private alcove. Randall
saw Carrie in the alcove with another major Hollywood movie star, Chase Cramer
(“Chase”). Carrie and Chase were drinking and laughing together in the hot tub.
Randall got many photographs of Carrie and Chase close to each other. He was happy
with the stories that he could write about the photographs, so he climbed down from the
fence and began to pack up his equipment and head back to his office. When Randall was
about to put the cover over his camera lens and make his way out of the bushes that line
Carrie's fence, he heard a gate open. Without thinking, Randall jumped behind a bush to
hide and assess the situation. Randall then saw Carrie and Chase leaving the property
together. Carrie had her drink in one hand and Chase’s hand in the other. Carrie and
Chase went on a short stroll by the lake and spent some time talking on a bench nearby.
Randall followed them while they walked, and got a few shots of them from behind,
5
holding hands. Randall wanted to head back to the office, but he knew that his boss, Alex
Anderson (“Alex”), would want a more unique and exclusive shot of the Carrie and
Chase acting romantically. He knew that Alex’s response to the photographs that Randall
had so far would be, “Good, not great.” That’s when Randall got his perfect shot: a side-
view photograph of Carrie kissing Chase. Randall knew that he would get a lot of money
for the photograph, whether or not it was a first kiss that could lead to nothing, the start of
a long-term romantic relationship, or a reaffirmation of an existing relationship between
the two celebrities. Since a relationship between Carrie and Chase had never before been
publicized, let alone a picture of the two kissing, Randall was ecstatic that he got such an
exclusive photograph. Randall wanted to get a few more photographs of Carrie and Chase
kissing, but before he could, they were abruptly interrupted by a phone call that Carrie
received. Carrie and Chase quickly ran back toward Carrie’s house. Interested in what
was going on and hoping that a new story could come to light, Randall ran and climbed
onto Carrie’s fence again to see what was happening in her backyard. He then saw Carrie
rushing to attend to someone yelling by the pool. One of Carrie’s famous friends had cut
her foot very badly on a broken piece of glass. Within a few minutes, Randall heard a
siren nearing Carrie’s property. A minute later, he saw an ambulance drive up to Carrie’s
property and enter through a gate that was about twenty feet from where Randall was
standing. Randall made a spur-of-the-moment decision to sneak onto Carrie’s property.
He knewk that this would likely be his only chance to get exclusive shots of Carrie’s
house and her friend’s injury. Randall was pretty sure that entering onto Carrie's private
property without cause was illegal, but Randall reasoned that since Carrie’s gate was
6
opened for the ambulance and did not close after the ambulance entered onto the
property, it was an open invitation to enter the premises.
Once inside, Randall knew that he had to be discreet. He pounced from bush to bush and
made his way deeper into Carrie’s backyard. He was able to take photographs of the
bloody scene where Carrie’s injured friend was located. Next, Randall moved back
around to the front of Carrie’s house where the paramedics had left the front door open.
He decided to sneak into Carrie’s house and take some photographs while he had the
opportunity. Once in the house, Randall could not help but notice that there was trash,
food, and liquor everywhere. Mistakenly thinking that everyone was outside, Randall was
surprised to hear a high-pitched, “Hello.” He turned around and saw Casey sitting on a
stool by Carrie’s liquor-covered bar. Casey thought that Randall was just another guest at
her mom’s party and asked, “Are you a friend of my mom?” Randall did not know what
to do, but he quickly snapped a photograph of Casey and left Carrie’s house as quickly as
possible. Casey assumed that Randall must have been a friend of her mom’s, and thought
nothing more of his conduct.
When Randall was leaving Carrie’s property, he spotted a white trash bag at the end of
the driveway on the curb right outside of Carrie’s private property. The trash bag was
outside of Carrie’s gate earlier, but Randall had not noticed it until now. Thinking that
there may be something of value in the trash bag, Randall decided to take it to his car and
sift through it to find anything that he could write a story on. Among a lot of dirty paper
towels, discarded food waste, and liquor bottles of all shapes and sizes, Randall found an
7
empty bottle of Carrie’s prescription medication. He did not recognize the medication,
but he looked it up online and discovered that it is primarily used to treat mild forms of
bi-polar disorder. Randall knew that this could be a huge story since Carrie had never told
the public that she had bi-polar disorder. Randall knew he could make a lot of money by
disclosing that fact to the readers of The Hollywood Update.
Next, Randall drove to his office in downtown Chicago and told his boss about what had
happened regarding Carrie and Chase, Carrie's injured friend, Casey, and the medication
that he found in Carrie’s trash. Randall’s boss, Alex, was extremely happy with the
photographs that Randall took of Carrie and the stories that they could write based on the
photographs, but he was also concerned about Carrie’s right to privacy and any legal
issues that might arise regarding Randall’s conduct and findings. Alex decided to consult
with Andrew Altman (“Andrew”), the entertainment attorney at The Hollywood Update,
about the situation. Specifically, he wanted Andrew to explain which issues may arise
regarding Carrie’s right to privacy if she were to start a legal battle regarding Randall’s
conduct.
Celebrities, like Carrie Cartwright in the above hypothetical, are frequently subjected to
invasions of their personal lives by paparazzi.1 Whether they are eating out at fancy restaurants
1 See Why Paparazzi Are Wrong, Cable News Network: Entertainment (13 May 2006), available at http://www.cnn.com/2006/SHOWBIZ/Movies/05/09/sunshine.access/index.html?_s=PM:SHOWBIZ; Paparazzi Privacy Invasions Towards Celebrities Impacts Everyone, The Paparazzi Reform Initiative (12 October 2009), available at http://paparazzi-reform.com/paparazzi-reform-opinion/2009/10/12/paparazzi-privacy-invasions-towards-celebrities-impacts-ever.html.
8
with their families, shopping at high-end clothing stores with their friends, or enjoying a nice
walk on a Sunday afternoon with a romantic interest, celebrities are constantly bombarded by
paparazzi who want to get the perfect photograph to sell to publishers. A pertinent question for
celebrities like Carrie is: when do paparazzi go too far in trying to get an exclusive photograph,
so as to amount to invading an individual’s right to privacy through the tort of intrusion upon the
seclusion of another?
Paparazzi face immense pressure not only to get high-quality photographs, but also to
capture exclusive photographs that no other photographer has been able to capture. As a result,
many paparazzi have resorted to highly invasive and, at times, aggressive tactics in order to get
the right photograph. It is notable that the payoff can often be well worth the effort involved in
going to extreme measures to get the perfect photograph. For example, Scott Cosman
(“Cosman”), the owner of the photo agency named Fame/Flynet Inc., stated that magazines
would pay “a fortune” for a wedding photo from Angelina Jolie and Brad Pitt’s wedding.2
Cosman predicted a payout of “$10 million-plus” for a clear photograph of Jolie, Pitt, and their
children at the wedding.3
Since efforts by paparazzi to get exclusive photographs often involve privacy invasions,
it is important for both paparazzi and media publishers to have a detailed understanding of
privacy laws in the jurisdiction in which they take and disseminate photographs of celebrities.
2 Natalie Finn and Claudia Rosenbaum, E! Entertainment Television, LLC: E! Online, How Much Will Angelina Jolie and Brad Pitt's Wedding Pictures Sell For (visited Sept. 18, 2014), available at http://www.eonline.com/news/309605/how-much-will-angelina-jolie-and-brad-pitt-s-wedding-pictures-sell-for. (discussing paparazzi payment for photographs from Angelina Jolie and Brad Pitt’s wedding). 3 Id.
9
I. What is Privacy?
The Constitution of the State of Illinois expressly recognizes a right to privacy in Article
1, Section 6, which says, "[t]he people shall have the right to be secure in their persons, houses,
papers and other possessions against unreasonable searches, seizures, invasions of privacy or
interceptions of communications by eavesdropping devices or other means."4 While this Article
was enacted in order to address an individual’s right to privacy from governmental intrusions, it
was one of the first instances where the right to privacy was expressly recognized in Illinois.
According to Webster’s Dictionary, privacy is defined as “the quality or state of being
apart from the company or observation of others: seclusion.”5 Additionally, Black's Law
Dictionary's definition of “right of privacy” points the reader to the entry for “invasion of
privacy”, which is defined as “[a]n unjustified exploitation of one's personality or intrusion into
one's personal activities.”6 The definition of “invasion of privacy” also includes “invasion of
privacy by intrusion”, which is defined as an “offensive, intentional interference with a person's
seclusion or private affairs.”7
Furthermore, the Supreme Court of the United States held that “the right to privacy only
exists for living persons, of which possess feelings and sensibilities.”8 Therefore, the right of
privacy dies with the person, and a corporation cannot claim a right to privacy.9
4 ILL. CONST. 1970, ART. I, §6 5 Burns v. Masterbrand Cabinets, Inc., 874 N.E.2d 72, 77 (Ill. App. Ct. 2007). 6 Black’s Law Dictionary (9th ed. 2009), available at Westlaw BLACKS. 7 Id. 8 Ill. First Amend. Center. (visited Sept. 18, 2014), available at http://www.illinoisfirstamendmentcenter.com/privacy_rights_Dev_Of.php. 9 Id.
10
II. The Evolution of Privacy Law in Illinois
According the Section 652 of the Restatement,10 “[o]ne who invades the right of privacy
of another is subject to liability for the resulting harm to the interests of the other.”11 Despite the
Restatement’s recognition of a right to privacy, the law regarding privacy invasions by non-
governmental actors has generally developed through Illinois common law.
The right to privacy was first acknowledged in Illinois at the appellate level in 1952 in
Eick v. Perk Dog Food Company.12 In Eick,13 Plaintiff, Virginia Eick, brought suit against
Defendant, Perk Dog Food Co. and others, for violations of her right of privacy resulting from
the unauthorized use of her photograph in an advertisement that promoted the sale of dog food.14
The advertisement depicted Eick as the blind, prospective donee of a master eye dog, even
though she was already the owner of such a dog and was not in need of another.15 Specifically,
Eick alleged that the advertisement “caused her to lose the respect and admiration of those who
knew her[,] and to suffer humiliation and mental anguish.”16 The court noted that at the time of
judgment, no court of review in the state had made a decision on whether or not the right to
privacy exists in Illinois; although, “[c]ourts of at least twenty American jurisdictions ha[d]
explicitly recognized the right either in direct holdings or . . . dicta.”17 The court ultimately
concluded that Eick stated a “good cause of action for violation of her right of privacy”18 as a
result of Defendants’ unauthorized use of her picture for advertising purposes. The court
10 RESTATEMENT (SECOND) OF TORTS, §652A (1997). 11 Id. 12 Eick v. Perk Dog Food Co., 106 N.E.2d 742 (Ill. App. Ct. 1952) (Illinois appellate court for the first district granted appeal and held that Plaintiff stated a good cause of action for violation of her right of privacy as a result of Defendants’ unauthorized use of her picture for advertising purposes). 13 Id. 14 Id. at 743. 15 Id. at 743. 16 Id. at 743. 17 Id. at 743. 18 Eick, 106 N.E.2d 742 at 748; See RESTATEMENT (SECOND) OF TORTS, §652A (1997).
11
reversed the Circuit Court of Cook County’s order, which sustained a motion to dismiss the suit
for failure to state a cause of action.19
Despite the holding in Eick,20 it was not until 1970 in Leopold v. Levin21 that the Supreme
Court of Illinois first recognized what it alluded to as the right to be “let alone.”22 In Leopold,23
Plaintiff, Nathan Leopold, Jr. (“Leopold”), alleged a violation of his right to privacy when a
novel and motion picture were distributed regarding his murder and kidnapping of a 14-year-old
boy.24 The framework of the novel and movie were based on the facts surrounding the
kidnapping and murder, however, the thoughts and emotions of the characters came “from within
the author, as he imagined them” to belong to Leopold.25 Furthermore, Leopold’s name did not
appear in the novel’s foreword, and fictitious names were used in the novel and movie.26 The
court noted that “[p]rivacy is one of the sensitive and necessary human values and undeniably
there are circumstances under which it should enjoy the protection of law.”27 Ultimately,
however, the court held that Leopold did not have a legally protected right of privacy in the case
at bar, given the “liberty of expression constitutionally assured in a matter of public interest[,]”
“the enduring public attention to the plaintiff’s crime and prosecution,” “and the plaintiff’s
consequent and continuing status as a public figure.”28 The court reasoned that books,
newspapers, and magazines were “normally a form of expression protected by the First
Amendment and that their protection is not affected by the circumstances that the publications
19 Id. at 743. 20 Eick, 106 N.E.2d 742. 21 Leopold v. Levin, 259 N.E.2d 250, 254 (Ill. App. Ct.1970). 22 Id. 23 Id. 24 Id. at 252. 25 Id. 26 Leopold, 259 N.E.2d 250 at 252. 27 Id.; See RESTATEMENT (SECOND) OF TORTS, §652A (1997). 28 Id.
12
are sold for profit.”29 Therefore, the court affirmed the circuit court’s judgment, and granted
summary judgment and judgment on the pleadings in favor of the defendants.30
III. Modern Privacy Law in Illinois
Today, the Restatement recognizes four variants regarding what constitutes an invasion
of one’s right to privacy: (1) unreasonable intrusion upon the seclusion of another; (2)
appropriation of the other's name or likeness; (3) unreasonable publicity given to the other’s
private life; and (4) publicity that unreasonably places the other in a false light before the
public.31 Below, the first variant, unreasonable intrusion upon the seclusion of another
(“intrusion upon seclusion”), is considered in connection to Illinois common law and the
hypothetical that was presented at the beginning of this paper.
Unreasonable Intrusion Upon the Seclusion of Another
1. Legal Doctrine and Common Law
One may be liable for an invasion of privacy is if he or she “intentionally intrudes,
physically or otherwise, upon the solitude or seclusion of another or [her] private affairs or
concerns . . . if the intrusion would be highly offensive to a reasonable person.”32 Such an
invasion does not depend on whether or not publicity is given to the person who had her privacy
invaded; it consists “solely of an intentional interference with [her] interest in solitude or
seclusion, either as to [her] person or as to [her] private affairs or concerns.”33
One may be liable for an invasion of privacy through intrusion upon seclusion in
numerous ways. First, one may be liable for intruding into a place in which the plaintiff has
29 Id. at 255. 30 Id. at 257. 31 RESTATEMENT (SECOND) OF TORTS, §652A (1997). 32 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 33 RESTATEMENT (SECOND) OF TORTS, §652B, COMMENT (A) (1997).
13
secluded herself, such as if the plaintiff locked herself in a hotel room or if a defendant insists
upon entering the plaintiff’s secluded area without the plaintiff’s consent.34 Second, one may be
liable for an invasion of privacy through intrusion upon seclusion if the defendant uses her
senses, with or without mechanical aids, to “oversee or overhear a plaintiff’s private affairs.”35
This includes looking into a plaintiff’s windows with binoculars or listening to her telephone
conversions through a wire-tapping device.36 Third, an invasion of privacy through intrusion
upon seclusion may occur through some other form of investigation or examination into a
plaintiff’s private concerns, such as by “opening a plaintiff’s private and personal mail, searching
her safe or her wallet, examining her private bank account, or compelling her by a forged court
order to permit an inspection of her personal documents.”37 As previously mentioned, “[t]he
intrusion itself makes the defendant subject to liability, even though there is no publication or
other use of any kind of the photograph or information outlined.”38
It is important to note that a defendant is subject to liability for an invasion of privacy
only when such the intruder has intruded into a private place “or has otherwise invaded a private
seclusion that the plaintiff has thrown about [her] person or affairs.”39 Consequently, there is “no
liability for the examination of a public record concerning the plaintiff or of documents that the
plaintiff is required to keep and make available for public inspection…[n]or is there liability for
observing [her] or even taking [her] photograph while [she] is walking on the public highway,
since [she] is not then in seclusion, and [her] appearance is public and open to the public eye.”40
Furthermore, the Restatement explains that “even in a public place . . . there may be some
34 RESTATEMENT (SECOND) OF TORTS, §652B, COMMENT (B) (1997). 35 Id. 36 Id. 37 Id. 38 Id. 39 Id. 40 RESTATEMENT (SECOND) OF TORTS, §652B, COMMENT (C) (1997).
14
matters about the plaintiff, such as [her] underwear or lack of it, that are not exhibited to the
public gaze; and there may still be invasion of privacy when there is [an] intrusion upon these
matters.”41 The Restatement, therefore, indicates that while the location of an invasion must be
taken into consideration, of equal importance is the nature of the content that is invaded upon.
The Restatement provides the following illustration: “A[lice], a young woman, attends a public
place of amusement where various tricks are played upon visitors. While she is there[,] a
concealed jet of compressed air blows her skirts over her head, and reveals her underwear.
B[rian] takes a photograph of her in that position. B[rian] has invaded A[lice]'s privacy.”42 In this
example, although Alice is in a public place and her conduct is displayed openly to the public,
Brian has still invaded Alice’s privacy because he intruded upon her inherently private affairs.
The Restatement does not provide further examples of matters that, if invaded upon, would
constitute an invasion of privacy even if such an invasion occurs in public. Such a determination
is left to the courts to decide on a case-by-case basis, but the invasion should amount to the
privacy invasion involved when Brian photographed Alice in her underwear if it is to amount to
an invasion of privacy despite having occurred in public.43
Additionally, there is no liability for invasion of privacy through intrusion upon seclusion
“unless the interference with the plaintiff's seclusion is a substantial one, of a kind that would be
highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable
man would strongly object.”44 Thus, one is not liable for an invasion of privacy for calling a
plaintiff once or knocking at a plaintiff’s door to demand payment of a debt, but “when the
telephone calls are repeated with such persistence and frequency as to amount to a course of
41 Id. 42 Id. 43 Id. 44 Id.
15
hounding the plaintiff that becomes a substantial burden to [her] existence,”45 then the plaintiff’s
privacy is invaded.46
A popular defense by media photographers is that laws that restrict the movements and
activities of paparazzi violate the First Amendment rights of freedom of speech and the press.
This paper, however, is limited so as to reflect only prima facie liability under the common law
of Illinois. Therefore, the consideration of a First Amendment defense is not within the scope of
this paper, and the analyses in this paper have been constructed so as to not collide with the First
Amendment defense.
The first Illinois case involving the tort of intrusion upon seclusion was Bureau of Credit
Control v. Scott,47 an Illinois fourth district appellate court case in which an individual was
harassed by a credit bureau attempting to collect an unpaid debt. The court ultimately ruled that
the plaintiff stated a cause of action based on intentional infliction of severe emotional distress,
but that there was “no need to create additional remedies[,]”48 i.e. no need to allow an invasion of
privacy action claim based upon intrusion upon seclusion. The court had the opportunity to
recognize the tort of intrusion upon seclusion, but decided against it. The problem seems to have
been that the plaintiff had a remedy under count one, intentional infliction of severe emotional
distress, and the court did not want this case to be the first in which a complaint alleging an
invasion of privacy is upheld. The court explained that it was “aware of no other Illinois cases
upholding a complaint alleging invasion of privacy[, and that it] see[s] no need to create
additional remedies . . . since Scott has a remedy under [c]ount [one].”49 It is notable that if Scott
45 RESTATEMENT (SECOND) OF TORTS, §652B, COMMENT (C) (1997). 46 Id. 47 Bureau of Credit Control v. Scott, 345 N.E.2d 37 (Ill. App. Ct. 1976) disapproved of by Burns v. Masterbrand Cabinets, Inc., 874 N.E.2d 72 (Ill. App. Ct. 2007). 48 Id. at 40. 49 Id.
16
did not already have a remedy regarding the intentional infliction of severe emotional distress,
this may have been the first case to allow invasion of privacy action claim based on intrusion
upon seclusion.
The next case regarding the tort of intrusion upon seclusion was Bank of Indiana v.
Tremunde.50 In Bank of Indiana,51 the Illinois appellate court for the fifth district stated that
while it “found no reported Illinois cases recognizing a cause of action for unreasonable intrusion
upon seclusion,”52 it assumed, on the basis of Leopold,53 that “the Supreme Court [of Illinois]
would recognize such an action were appropriate facts alleged and proved.”54 In Bank of
Indiana,55 a bank’s agents acted to load replevied cattle and equipment, belonging to the
plaintiff, onto trucks after serving the plaintiff a copy of a writ of replevin.56 While such loading
took the bank’s agents several hours and was not completed until 10 p.m., the court found that a
cause of action for intrusion upon seclusion was not proven, since there was “nothing
unreasonable about the actions of the bank's agents . . . in loading the replevied cattle and
equipment onto the trucks.”57 The court noted that while the process was noisy and “no doubt it
would have been somewhat annoying to a reasonable person situated[,] . . . [t]here was no
proof . . . of anything unreasonably intrusive about the procedure used, much less of anything
which would have been highly offensive to a reasonable person.”58 Therefore, the court affirmed
the circuit court’s judgment.59
50 Bank of Indiana v. Tremunde, 365 N.E.2d 295 (Ill. App. Ct. 1977). 51 Id. at 296. 52 Id. 53 Leopold, 259 N.E.2d 250 at 254. 54 Bank of Indiana, 365 N.E.2d 295 at 295-96. 55 Id. at 298. 56 Id. at 298. 57 Id. at 298. 58 Id. at 298. 59 Bank of Indiana, 365 N.E.2d 295 at 298.
17
In contrast to the Bank of Indiana60 court’s recognition of a cause of action for intrusion
upon seclusion, in Kelly v. Franco61, the Illinois appellate court for the first district held that “the
clear implication in the Scott62 case is that, in Illinois, actions for invasions of privacy are limited
to use of an individual's name or likeness for commercial purposes.”63 The court affirmed the
trial court's decision, which dismissed the intrusion upon seclusion count as not recognized by
the law.64 Kelly suggests that actions for invasions of privacy in Illinois could not be brought for
an intrusion upon seclusion.65
Despite the conflict between the holdings in Scott,66 Bank of Indiana,67 and Kelly,68 the
Illinois appellate court for the third district expressly held in Melvin v. Burling69 that “a cause of
action for invasion of privacy may be stated for the unreasonable intrusion upon the seclusion of
another.”70 In Melvin,71 the plaintiffs claimed an invasion of privacy, given that the defendant,
numerous times, sent the plaintiffs items that they never ordered and then later demanded
payment by the plaintiffs.72 Specifically, the plaintiffs alleged that the defendant intentionally
ordered these items and used the plaintiffs’ names without authority when ordering the items.73
Notably, the court explained that it did not interpret the Scott74 case to represent that a cause of
action based upon intrusion upon seclusion does not exist in Illinois. Instead, the court stated that
60 Id. at 295. 61 Kelly v. Franco, 391 N.E.2d 54 (Ill. App. Ct. 1979). 62 Bureau of Credit Control, 345 N.E.2d at 37. 63 Kelly, 391 N.E.2d at 58. 64 Id. 65 Id. 66 Bureau of Credit Control, 345 N.E.2d 37. 67 Bank of Indiana, 365 N.E.2d 295. 68 Kelly, 391 N.E.2d 54. 69 Melvin v. Burling, 490 N.E.2d 1011 (Ill. App. Ct. 1986). 70 Id. at 1013. 71 Id. 72 Id. at 1012. 73 Id. 74 Bureau of Credit Control, 345 N.E.2d 37.
18
it believed that the Scott75 court “chose not to make such a substantive decision on the matter
since it had already reversed the trial court on the emotional distress count.”76 This holding goes
directly against the holding in Kelly.77
The pivotal difference between the Kelly78 and Melvin79 cases was their differing
interpretations of the Scott80 case. While the Kelly court interpreted Scott narrowly on its face in
holding Scott to imply that actions for invasions of privacy in Illinois are limited to use of an
individual's name or likeness for commercial purposes, the Melvin court looked at the Scott case
more holistically and took into consideration the court’s position at the time of its judgment. Had
the Kelly court taken into consideration the Scott court’s position at the time of its holding, as the
Melvin court did, it might have viewed the court as having merely chosen not to make a
substantive decision at that time on whether or not a cause of action based upon intrusion upon
seclusion exists in Illinois. Likewise, the Melvin court may have not viewed the Scott court as
having chosen not to make a substantive decision on the intrusion upon seclusion matter had the
Scott court not already reversed the trial court on the emotional distress count. Instead, the
Melvin court, like the Kelly court, may have interpreted the Scott case to imply that actions for
invasions of privacy in Illinois are limited to use of an individual's name or likeness for
commercial purposes. Ultimately, however, since the Melvin case came later in time than the
Kelly case and, as discussed below, since the elements laid out in Melvin as constituting a cause
of action for intrusion upon seclusion have been widely accepted and expressly recognized
75 Id. 76 See Schmidt v. Ameritech Illinois, 768 N.E.2d 303, 312 (Ill. App. Ct. 2002) (indicating that there is a legal cause of action for unreasonable intrusion upon seclusion). 77 Kelly, 391 N.E.2d 54. 78 Kelly, 391 N.E.2d 54. 79 Id. 80 Bureau of Credit Control, 345 N.E.2d 37.
19
throughout Illinois, it follows that the Kelly case was merely wrong in its interpretation of the
Scott case.
Ultimately, the Melvin81 court expressly recognized a cause of action intrusion upon
seclusion, and held that to bring such an action a plaintiff must demonstrate that “(1) there was
an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) the intrusion was offensive
or objectionable to a reasonable person; (3) the matter upon which the intrusion occurred was
private; and (4) the intrusion causes anguish and suffering.”82 In other words, it paraphrased the
Restatement. Under the facts, the court held that the plaintiffs satisfactorily proved that the
defendant's actions in ordering items using the plaintiffs’ names, without consent to do so, did
intrude upon the plaintiffs’ seclusion or solitude. The court inferred that the type of activity at
hand was private, was offensive and objectionable to a reasonable man, and that the facts
indicate elements of anguish and suffering as a result of “the difficulties of returning
unauthorized merchandise and dealing with irate creditors.” The court reversed the circuit court’s
holding and remanded the case.83
Since the Melvin84 case’s adoption of the Restatement’s four elements for stating a cause
of action for intrusion upon seclusion, the four elements have been widely accepted and
expressly recognized as constituting a cause of action for an invasion of privacy through
intrusion upon seclusion in the state of Illinois.85
81 Melvin v. Burling, 490 N.E.2d 1011 (Ill. App. Ct. 1986). 82 Melvin, 490 N.E.2d 1011 at 1013. 83 Id. at 1014. 84 Melvin, 490 N.E.2d 1011. 85 See Davis v. Temple, 673 N.E.2d 737 (Ill. App. Ct. 1996) (“A review of this area of law leads us to adopt the four-pronged test set forth in Melvin for determining whether a cause of action has been properly alleged for intrusion upon seclusion”); Benitez v. KFC Nat. Mgt. Co., 714 N.E.2d 1002 (Ill. App. Ct. 1999); Schmidt v. Ameritech Illinois, 768 N.E.2d 303 (Ill. App. Ct. 2002).
20
In Johnson v. K mart Corp.,86 a case in the appellate court for the first district, the
plaintiffs were employed at the defendant's distribution center in Manteno, Illinois.87 Without the
plaintiffs’ knowledge, the defendant placed private detectives, posing as employees, in the
workplace to solicit highly personal information about the employees.88 The private detectives
compiled information regarding the employees' family problems, health problems, sex lives,
future work plans, and attitudes about the defendant, and reported this extremely personal
information to the defendant.89 The defendant admitted that it had no business purpose for
gathering such personal information about employees' personal lives; yet, it never instructed the
investigators to change their practices or to stop including highly personal information in their
reports.90 Notably, the appellate court “expressly recognize[d] a cause of action for the tort of
invasion of privacy by intrusion upon seclusion in [Illinois] . . . [and] adopt[ed] the four elements
set forth in Melvin v. Burling.”91 The court ruled that the circuit court erred in granting summary
judgment in favor of the defendant because the plaintiffs “had voluntarily disclosed the
complained-of information to the investigators and [because] defendant's actions did not amount
to an offensive or objectionable intrusion.”92 The court found that “a genuine issue of fact exists
regarding whether there was an unauthorized intrusion[, since] . . . the means used by defendant
to induce plaintiffs to reveal this information were deceptive.93 Further, the court held that the
plaintiffs had a reasonable expectation that their conversations with “coworkers” would remain
86 Johnson v. K mart Corp., 723 N.E.2d 1192 (Ill. App. Ct. 2000). 87 Id. at 1194. 88 Id. at 1196 89 Id. 90 Johnson, 723 N.E.2d 1192 at 1197. 91 Johnson, 723 N.E.2d 1192 at 1196. 92 Id. 93 Id.
21
private, “at least to the extent that intimate life details would not be published to their
employer.94 Thus the court reversed and remanded the circuit court’s ruling.95
Similarly, in Burns v. Masterbrand Cabinets, Inc.,96 the appellate court for the fourth
district held that it would “keep with the other districts” in Illinois and “expressly recognize that
the tort of intrusion upon seclusion is actionable in Illinois.”97 The court applied the four
elements of the tort of intrusion upon seclusion as set forth in Melvin98 and made reference to the
Restatement's definition of intrusion upon seclusion, which says, “[o]ne who intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another or [her] private affairs
or concerns, is subject to liability to the other for invasion of [her] privacy, if the intrusion would
be highly offensive to a reasonable person.”99
Despite the recognition of the tort of invasion of privacy through intrusion upon seclusion
in Illinois appellate courts, the Supreme Court of Illinois was slow to recognize such a cause of
action.100 In 1989, in Lovgren v. Citizens First Nat. Bank of Princeton,101 the Supreme Court of
Illinois granted appeal to hear a case brought by the plaintiff, Harold Lovgren (“Lovgren”).
Lovgren obtained a second mortgage on his farm from the defendant, Citizens First National
Bank of Princeton (the “Bank”), but failed to meet his financial obligations when the payment
became due.102 The Bank urged Lovgren to sell his farm, but Lovgren refused and requested
additional time to pay the Bank.103 Despite this request, the Bank placed advertisements in local
94 Id. 95 Id. at 1197. 96 Burns v. Masterbrand Cabinets, Inc., 874 N.E.2d 72 (Ill. App. Ct. 2007). 97 Id. 98 Melvin, 490 N.E.2d 1011. 99 Burns, 874 N.E.2d 72 at 76 (quoting RESTATEMENT (SECOND) OF TORTS § 652B, AT 378 (1977)). 100 Johnson, 723 N.E.2d 1192 at 1195. 101 Lovgren v. Citizens First Nat. Bank of Princeton, 534 N.E.2d 987 (Ill. 1989). 102 Id. at 988. 103 Id.
22
newspapers stating that Lovgren was selling his farm at public auction, although no such sale
was scheduled and the advertisements were placed without Lovgren’s knowledge or consent.104
Lovgren alleged an invasion of privacy based upon the intrusion upon seclusion.105 The court
ultimately held that the defendant’s conduct did not constitute an intrusion upon seclusion “since
the alleged offensive conduct and subsequent harm resulted from the defendants' act of
publication, not from an act of prying.”106 While Lovgren, therefore, may have brought a cause
of action for the invasion of privacy through publicity given to private facts, the court properly
held that Lovgren could not bring a cause of action for intrusion upon seclusion regarding the
defendant’s conduct. This aligns with the Restatement’s explanation of the tort of intrusion upon
seclusion, which states that “[t]he form of invasion of privacy covered by this Section does not
depend upon any publicity given to the person whose interest is invaded or to his affairs. It
consists solely of an intentional interference with his interest in solitude or seclusion.”107
Additionally, the Lovgren108 court noted that while the Restatement articulates the
privacy tort of intrusion upon seclusion, the court’s discussion of the tort in the case at bar “does
not imply a recognition . . . of such a cause of action.”109 It explained that although there is a
conflict among the Illinois appellate courts as to whether such a cause of action is recognized in
Illinois, it “does not find it necessary . . . to resolve these differences.”110 Despite the court’s lack
of recognition, it noted that the tort requires some type of highly offensive prying into the
physical boundaries or affairs of another person.111
104 Lovgren, 534 N.E.2d 987 at 988. 105 Id. 106 Id. at 988-89. 107 RESTATEMENT (SECOND) OF TORTS, §652B, COMMENT (A) (1997). 108 Lovgren, 534 N.E.2d 987. 109 Lovgren, 534 N.E.2d 987 at 989. 110 Id. 111 Id.
23
Furthermore, it is notable that the Supreme Court of Illinois in Lovgren112 held that the
standard of conduct to which the tort of intrusion upon seclusion applies is highly offensive
conduct, not merely offensive conduct.113 Therefore, to prove a cause of action for intrusion
upon seclusion, a plaintiff must show that the intrusion was “not only offensive, but highly
offensive to a reasonable person.”114
It is significant that the first time that the Supreme Court of Illinois expressly recognized
the tort of intrusion upon seclusion was in 2012, in Lawlor v. N. Am. Corp. of Illinois.115 The
court explained that since its decision in Lovgren,116 all five appellate districts in Illinois117 had
explicitly recognized the validity of a cause of action for invasion of privacy through intrusion
upon seclusion.118 Further, the court noted that the courts “in the majority of other states
recognized such a cause of action.”119 Therefore, the court declared that it would “join the vast
majority of other jurisdictions that recognize the tort of unreasonable intrusion upon
seclusion.”120
2. Application to Hypothetical
The Melvin121 court held that to bring a cause of action for intrusion upon seclusion, a
plaintiff must show (1) an unauthorized intrusion or prying into the plaintiff's seclusion; (2) the
intrusion must be offensive or objectionable to a reasonable man; (3) the matter upon which the 112 Id. at 987. 113 Schmidt, 768 N.E.2d 303 at 312 (emphasis added). 114 Id. 115 Lawlor v. N. Am. Corp. of Illinois, 983 N.E.2d 414 (Ill. 2012), reh'g denied (Jan. 28, 2013). 116 Lovgren, 534 N.E.2d 987. 117 See Schmidt v. Ameritech Illinois, 768 N.E.2d 303 (Ill. App. Ct. 2002); Benitez v. KFC Nat. Mgt. Co., 714 N.E.2d 1002 (Ill. App. Ct. 1999); Melvin v. Burling, 490 N.E.2d 1011 (Ill. App. Ct. 1986); Burns v. Masterbrand Cabinets, Inc., 874 N.E.2d 72 (Ill. App. Ct. 2007); Davis v. Temple, 673 N.E.2d 737 (Ill. App. Ct. 1996). 118 Lawlor, 983 N.E.2d 414 at 425. 119 Id. 120 Id. 121 Melvin, 490 N.E.2d 1011.
24
intrusion occurs must be private; and (4) the intrusion causes anguish and suffering.”122 These
four elements have been widely accepted and expressly recognized as constituting a cause of
action for intrusion upon seclusion in the state of Illinois.123 Additionally, to prove a cause of
action for intrusion upon seclusion, a plaintiff must show that the intrusion “is not only
offensive, but highly offensive to a reasonable person.”124
This section considers the likelihood of an allegation of an invasion of privacy through
intrusion upon seclusion in connection with the four sets of photographs that Randall took and
the bag of garbage that Randall obtained from outside of Carrie’s property. In addition, this
section limits its analysis so as to reflect only prima facie liability under the common law of
Illinois, and therefore, there is no consideration of a First Amendment defense by Randall in this
section.
A. Hill Photographs
The first set of photographs that Randall took was of Carrie and her famous celebrity
friends drinking and partying in her backyard. First, Carrie must establish that Randall’s
intrusion was an “unauthorized intrusion or prying into the plaintiff's seclusion.”125 This element
is satisfied given that Randall intruded, via visual means through the use of his camera, into
Carrie’s private property in order to photograph Carrie and her friends partying in her backyard.
Carrie did not authorize Randall’s conduct. Furthermore, Randall used his senses, with or
without mechanical aids, to “oversee” Carrie’s private affairs,”126 which was described in the
122 Melvin, 490 N.E.2d 1011 at 1013-14. 123 See Davis v. Temple, 673 N.E.2d 737 (Ill. App. Ct. 1996) (“A review of this area of law leads us to adopt the four-pronged test set forth in Melvin for determining whether a cause of action has been properly alleged for intrusion upon seclusion”). 124 Id. 125 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 126 Id. at Comment (b).
25
Restatement127 as a way that one can subject himself to liability for the invasion of privacy
through intrusion upon seclusion.
Next, Carrie must demonstrate that Randall intruded upon a matter that was private. She
must also show that such intrusion would be highly offensive to a reasonable person.128 The
court in Acosta v. Scott Lab. LLC129 explained that “[p]ersons cannot reasonably maintain an
expectation of privacy in that which they display openly.”130 Notably, the court also held that it
did not matter whether the observation of openly displayed facts was accomplished by a video
camera or the naked eye.131 Instead, the pertinent question is “whether [the] plaintiff in the
instant case has alleged intrusion upon private facts in an area where he had a reasonable
expectation of privacy.”132
Furthermore, in Webb v. CBS Broad., Inc.,133 the plaintiffs were videotaped in their
backyard without their consent to such videotaping.134 The plaintiffs brought a claim for invasion
of privacy through intrusion upon seclusion against Defendant, CBS Broadcasting, Inc., for such
secret videotaping.135 Ultimately, the court held that the plaintiffs failed to establish that the
matter on which intrusion occurred was “private.”136 The court stated that the plaintiffs’ activities
in the “swimming pool and backyard were in plain view, and thus not secluded.”137 More
specifically, the court explained that the rear of the backyard where the plaintiffs were
videotaped was connected to an open, grassy area “through which members of the public walk to
127 Id. 128 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 129 Acosta v. Scott Lab. LLC, 377 F.Supp.2d 647 (N.D. Ill. 2005). 130 Id. at 650. 131 Id. 132 Id. 133 Webb v. CBS Broad., Inc., 08 C 6241, 2011 WL 4916341 (N.D. Ill. 2011). 134 Id. at 2. 135 Id. 136 Id. at 4. 137 Id. at 3.
26
reach a pond that is within the block on which the . . . house [was] located.”138 Additionally, the
court noted that although the backyard was fenced-in, the majority of the backyard was visible to
the naked eye from the inside of neighbors’ houses, and “the videotape . . . could have been
made from the public sidewalk or public street because the . . . backyard was visible to the public
from many vantage points.”139 The court held that even though the defendant used a zoom lens
when videotaping the backyard, “when objects are in plain view, there is no legitimate
expectation of privacy . . . [when] a passerby on the street or in the grassy area behind [the] yard
could observe what [the defendants in this case] saw.”140
In the hypothetical, Carrie did not have a reasonable expectation of privacy when she was
in her backyard with her friends. While Carrie had a 10-foot fence around the perimeter of her
property, like the plaintiffs in Webb, such a fence only functioned only to keep people off of
Carrie’s property physically and prevent people at ground-level from seeing into her yard.
Carrie’s conduct in the backyard was “displayed openly[,]”141 and she and her friends were “in
plain view”142 of anyone located on the hill where Randall took his photographs. Given these
facts and despite her 10-foot fence, Carrie could did not have a reasonable expectation of privacy
when she was drinking and partying with her friends in her backyard.
Although Carrie might be able to prove that a reasonable person would consider being
photographed at home by their pool to be “highly offensive,”143 she cannot establish a cause of
action for intrusion upon seclusion for the photographs that Randall took from the hill since she
138 Id. 139 Webb, 2011 WL 4916341 at 3. 140 Id. at 3-4; See Schiller v. Mitchell, 828 N.E.2d 323, 329 (Ill. App. Ct. 2005) (indicates that the privacy element of the tort of intrusion upon the seclusion of another is not satisfied where a camera was aimed at plaintiffs' garage, driveway, side-door area, and backyard, all of which are areas that a passerby on the street, a roofer, or a tree trimmer could see from a different angle). 141 Acosta, 377 F.Supp.2d 647 at 650. 142 Webb, 2011 WL 4916341 at 3. 143 Lovgren, 534 N.E.2d 987 at 989.
27
lacked a reasonable expectation of privacy when she and her friends were in plain view in her
backyard.
B. Alcove Photographs
The second set of photographs that Randall took was of Carrie and Chase in Carrie’s
private alcove. First, Carrie must establish that Randall’s intrusion was an “unauthorized
intrusion or prying” into her seclusion.144 Randall intruded into Carrie’s personal property,
without her consent, when he climbed onto Carrie’s fence in order to get a photograph of what
was going on in the alcove in her backyard. Therefore, Randall used his senses to “oversee”
Carrie’s private affairs without her authorization.145
Next, Carrie must prove that Randall intruded upon a matter that was private.146 Randall
intruded on a matter that was private when he photographed Carrie and Chase in the alcove.
Carrie’s alcove was built specifically for privacy purposes. Conduct in the alcove was not at all
visible from any viewpoint on the hill where Randall took his photographs, nor from above.
Further, the inside of the alcove can only be seen from one specific angle, which happened to be
the angle that Randall was located when he climbed onto Carrie’s fence in order to get the
photographs of Carrie and Chase in the alcove. Since the inside of Carrie’s alcove was not
“displayed openly”147 to the public or “in plain view”148 of anyone located on the hill where
Randall took his photographs or anyone flying overhead, Randall intruded upon a private matter.
Next, Carrie must prove that Randall’s intrusion would be highly offensive to a
reasonable person.149 It is important to note that the Supreme Court of Illinois, in Lovgren,150 has
144 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 145 Id. at Comment (b). 146 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 147 Acosta, 377 F.Supp.2d 647 at 650. 148 Webb, 2011 WL 4916341 at 3. 149 RESTATEMENT (SECOND) OF TORTS, §652B (1997).
28
noted that a cause of action does not constitute intrusion upon seclusion if such “high offense”
and the subsequent harm stem only from the “act of publication, [and] not from an act of prying”
into one’s private matters.151 The court held that an intrusion upon seclusion “depends upon
some type of highly offensive prying into the physical boundaries or affairs of another
person . . . [and that t]he basis of the tort is not publication or publicity.”152 Furthermore, the
court provided examples of conduct that constitutes highly offensive prying into the physical
boundaries or affairs of another person, including “invading someone's home; an illegal search of
someone's shopping bag in a store; eavesdropping by wiretapping; peering into the windows of a
private home; and persistent and unwanted telephone calls.”153
In addition, the Restatement provides an illustration of what is not considered “highly
offensive.” The illustration is as follows: a landlord calls his tenant at nine o'clock on Sunday
morning to demand payment of the rent, even though he knows both that the tenant is not ready
to pay and that the tenant objects to such a visit on Sunday.154 Although the tenant is “seriously
annoyed[,]” this is not an invasion of the tenant’s privacy that amounts to an invasion of privacy
that would be considered “highly offensive.”155
A reasonable person would consider Randall’s actions to constitute “prying into” Carrie’s
“physical boundaries or affairs” in such a way that would be considered highly offensive to a
reasonable person. Randall had to climb onto Carrie’s fence in order to achieve the proper
viewpoint so as to get the photographs of Carrie and Chase in the alcove. Additionally, Carrie’s
alcove was designed to ensure privacy from the public hill adjacent to her backyard, from above,
150 Lovgren, 534 N.E.2d 987 at 989. 151 Id. 152 Id. 153 Id. 154 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 155 Id.
29
and even from almost every angle within Carrie’s backyard. Randall’s conduct, therefore,
amounted to the same level of offensive prying as “peering into the windows of a private
home”156 or “eavesdropping by wiretapping,”157 which, in Lovgren,158 were considered to be
examples of conduct that constitutes highly offensive prying into the physical boundaries or
affairs of another person. Consequently, a reasonable person would consider Randall’s conduct
to be “highly offensive.”159
Lastly, Carrie must demonstrate that Randall’s intrusion caused “anguish and
suffering.”160 Such anguish and suffering cannot be a result of Randall’s publication of his
photographs, but must stem from the invasion itself.161 If Carrie sues Randall for invasion of
privacy for intrusion upon seclusion, she can establish that Randall’s intrusion caused anguish
and suffering if and when she becomes aware of such intrusion, and even without the publication
of the intrusive photographs. While “persistent and unwanted telephone calls”162 cause a plaintiff
immediate anguish and suffering, conduct may also cause anguish and suffering at a later time,
such as when a plaintiff discovers such a highly offensive intrusion.163 This fact is demonstrated
in Benitez v. KFC Nat. Mgt. Co.,164 where the Illinois appellate court for the second district
expressly recognized a cause of action for intrusion upon seclusion and indicated that plaintiffs
may bring such a cause of action where plaintiffs found out, at a later point in time, that
156 Lovgren, 534 N.E.2d 987 at 989. 157 Id. 158 Lovgren, 534 N.E.2d 987. 159 Id. at 989. 160 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 161 Lovgren, 534 N.E.2d 987 at 988. 162 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 163 Benitez v. KFC Nat. Mgt. Co., 714 N.E.2d 1002 (Ill. App. Ct. 1999). 164 Id.
30
defendants had viewed them disrobing and using the restroom facilities through holes in the
ceiling of a locker room at a restaurant.165
Randall’s conduct in the hypothetical may amount to causing anguish and suffering if
Carrie later discovers that Randall took photographs of her and Chase in the alcove, and even if
the photographs are not published in The Hollywood Reporter. Carrie could claim that she no
longer feels safe or private in her backyard given that Randall was able to climb her fence and
photograph her in an area that she took reasonable efforts to make private from the public.
Additionally, Carrie could claim that she has suffered ongoing anguish and suffering as a result
of Randall’s ability to invade her privacy without her consent or knowledge.
Related to the Benitez166 case is the Restatement’s167 explanation of conduct that amounts
to an invasion of privacy, even if what was invaded upon occurred in a public place. The
Restatement states, “even in a public place . . . there may be some matters about the plaintiff,
such as [her] underwear or lack of it, that are not exhibited to the public gaze; and there may still
be invasion of privacy when there is [an] intrusion upon these matters.”168 In Benitez, the
plaintiffs seemed to be in a semi-public place. Some may reason that the individuals who were
disrobing in plain view of others located within the locker room, as opposed to in a private stall
of some sort, could not have had a reasonable expectation of privacy with regard to the conduct
that they displayed openly. Others, however, may reason that a locker room, as a whole, is a
private place where individuals reasonably expect privacy regarding their conduct. The
Restatement indicates that while the location of an invasion must be taken into consideration, of
equal importance is the nature of the content that is invaded upon. Therefore, in Benitez, even if
165 Id. 166 Benitez, 714 N.E.2d 1002 (Ill. App. Ct. 1999). 167 RESTATEMENT (SECOND) OF TORTS, §652B, COMMENT (C) (1997). 168 Id.
31
the plaintiffs may have been considered to be in a public place in which other individuals in the
locker room could be viewed as public onlookers, their privacy was still invaded when the
defendants viewed them disrobing and using the restroom facilities through holes in the ceiling
of the locker room.
Ultimately, Carrie can recover for the tort of invasion of privacy through intrusion upon
seclusion for Randall’s photographs of Carrie and Chase in the alcove.
C. Kiss Photographs
The third set of photographs that Randall took was of Carrie and Chase kissing on public
property outside of Carrie’s fenced-in backyard. First, Carrie must establish that Randall’s
intrusion was an “unauthorized intrusion or prying into the plaintiff's seclusion.”169 In the
hypothetical at hand, Randall intruded into Carrie’s personal affairs in order to photograph Carrie
kissing Chase when he followed them around the perimeter of her property and took photographs
while engaged in romantic conduct. Carrie did not consent to such an intrusion and, therefore,
such an intrusion was unauthorized.
Next, Carrie must demonstrate that Randall intruded upon a matter that was private. The
Illinois appellate court for the first district, in Green v. Chicago Tribune Co.,170 held a person’s
“sexual life” or a “private fact of an intimate personal nature” to be “examples of inherently
private facts.”171 Randall did not intrude upon a matter that was private when he photographed
her kissing Chase. This is because of the location where her and Chase’s conduct occurred.
“When objects are in plain view, there is no legitimate expectation of privacy . . . [when] a
169 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 170 Green v. Chicago Tribune Co., 675 N.E.2d 249 (Ill. App. Ct. 1996). 171 Id.
32
passerby on the street . . . could observe what [the defendants] saw.”172 Similarly, the Acosta173
court explained that “[p]ersons cannot reasonably maintain an expectation of privacy in that
which they display openly.”174 Given that Carrie and Chase were on a public bench that was on
public land when they were photographed while kissing, Carrie’s conduct with Chase was
“displayed openly”175 and “in plain view”176 by anyone who may have been passing by when the
conduct occurred. While the Restatement explains that “even in a public place . . . there may be
some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the
public gaze; and there may still be invasion of privacy when there is [an] intrusion upon these
matters,”177 the private matter at hand, Carrie and Chase kissing on a public bench, does not
amount to the intrusiveness involved in an invasion into a plaintiff’s “underwear or lack of it.”178
Consequently, while Randall’s intrusion would be highly offensive to a reasonable person,
Randall did not invade Carrie’s privacy through intrusion upon seclusion when he took the kiss
photographs since the matter intruded upon was not “private.”179
D. Private Property Photographs
The fourth set of photographs that Randall took was of Carrie and her friends dealing
with the emergency situation in her backyard and of Casey, Carrie’s daughter, drinking by the
bar inside of Carrie’s house. Randall intruded into Carrie’s personal property in order to 172 Webb, 2011 WL 4916341 at 3-4; See Schiller v. Mitchell, 828 N.E.2d 323, 329 (Ill. App. Ct. 2005) (indicates that the privacy element of the tort of intrusion upon the seclusion of another is not satisfied where a camera was aimed at plaintiffs' garage, driveway, side-door area, and backyard, all of which are areas that a passerby on the street, a roofer, or a tree trimmer could see from a different angle). 173 Acosta, 377 F.Supp.2d 650 at 650. 174 Id.; See Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174 (Ill. App. Ct. 1997) (indicating that objects or articles that an individual seeks to keep private may be constitutionally protected from videotaping “only if they are not located in plain view”). 175 Acosta, 377 F.Supp.2d 650 at 650. 176 Webb, 2011 WL 4916341 at 3. 177 RESTATEMENT (SECOND) OF TORTS, §652B, COMMENT (C) (1997). 178 Id. 179 RESTATEMENT (SECOND) OF TORTS, §652B (1997).
33
photograph the emergency in the backyard and Carrie’s house. Despite Randall’s belief that he
legally entered Carrie’s property by following the ambulance, such an entrance constitutes an
unauthorized intrusion on Carrie’s private property by Randall, amounting to trespassing.180
Next, Carrie must prove that Randall intruded upon a matter that was private.181 Of
importance is the declaration by the Supreme Court of the United States that it has not cited “a
single case that even arguably supports the proposition that . . . enabl[ing] news photographers
and reporters to enter a private home for purposes unrelated to the execution of a warrant could
be regarded as a ‘reasonable’ invasion of either property or privacy.”182 Carrie’s property and
house are privately owned and protected by a 10-foot-tall fence to ensure privacy from uninvited
persons. Given the fact that Randall could not have had a warrant to enter the property since
private citizens cannot obtain such a warrant, he intentionally intruded upon a matter that was
private.
Next, Carrie must show that Randall’s intrusion would be highly offensive to a
reasonable person.183 Liability depends on whether Randall’s unauthorized entrance onto
Carrie’s private property and into Carrie’s house for nonemergency purposes would be highly
offensive to a reasonable person. Carrie made reasonable efforts to ensure that strangers would
not enter her property, including building a 10-foot-tall fence around her property and
maintaining a top-of-the-line security system for her home. Despite the fact that Carrie’s private
property and house were open to emergency personnel after the ambulance entered onto her
property in order to handle the emergency situation, Randall did not have any express or implied
180 See 720 ILL. COMP. STAT. ANN. 5/21-3. 181 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 182 Wilson, 526 U.S. 603 at 620-21 (although this case involved the right to privacy in connection to Fourth Amendment and an intrusion by a governmental actor, the concept of a reasonable expectation of privacy regarding a privacy invasion by an individual is identical). 183 RESTATEMENT (SECOND) OF TORTS, §652B (1997).
34
authority to enter onto Carrie’s private property, let alone into her house, to take photographs to
be published in a national magazine. Therefore, a reasonable person would find such conduct to
be highly offensive.184
Carrie must also demonstrate that Randall’s intrusion caused anguish and suffering.185
Such anguish and suffering must be a result of Randall’s intrusion, not a result of the
dissemination of the photographs considered in this subsubsection.186 Additionally, conduct may
cause anguish and suffering at a later time, such as when a plaintiff discovers such highly
offensive intrusion.187 Carrie can demonstrate that Randall’s intrusion caused her anguish and
suffering subjectively, and that, objectively, a stranger’s intruding onto someone’s private
property and into her house to photograph her friends and family would be highly offensive.188
Such an intrusion, even after the fact and without publication of such photographs, can leave one
feeling violated and uneasy. It can, therefore, be reasonably inferred that Carrie would
experience anguish and suffering after discovering that such a privacy violation occurred on her
private property without her consent or knowledge.
Consequently, Carrie can establish liability for the tort of invasion of privacy through
intrusion upon seclusion for Randall’s photographs of the emergency situation in her backyard
and the photographs of Casey in Carrie’s home.
184 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 185 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 186 Lovgren, 534 N.E.2d 987 at 989. 187 See Acuff v. IBP, Inc., 77 F. Supp. 2d 914 (C.D. Ill. 1999) (indicating that plaintiffs can bring action for intrusion upon seclusion where plaintiffs found out at a later point in time that defendants had viewed them engaging in medical exams and treatments through video surveillance in the nurse manager's office). 188 RESTATEMENT (SECOND) OF TORTS, §652B (1997).
35
E. Garbage
Carrie may also establish invasion of privacy through intrusion upon seclusion as a result
of Randall taking the trash bag that was sitting outside of her gate. The Restatement explains that
an invasion of privacy “may occur through some other form of investigation or examination into
a plaintiff’s private concerns, such as by opening a plaintiff’s private and personal mail [or]
searching [her] safe or wallet.”189
Randall “investigat[ed] or examin[ed]”190 Carrie’s private concerns when he looked
through her trash, and Carrie cannot prove that she had a right to privacy with regard to the
contents of the trash bag that Randall removed from outside of her property. In California v.
Greenwood,191 the Supreme Court of the United States ruled that “[i]t is common knowledge that
plastic garbage bags left on or at the side of a public street are readily accessible to animals,
children, scavengers, snoops, and other members of the public.”192 Furthermore, the Court noted
that the respondents placed their trash bags on the curb at the front of their house for the “express
purpose of conveying it to a third party, the trash collector, who might himself have sorted
through respondents' trash or permitted others . . . to do so.”193 Consequently, the Court ruled
that since the respondents “deposited their garbage ‘in an area particularly suited for public
inspection and, in a manner of speaking, public consumption, for the express purpose of having
strangers take it,’ respondents could have had no reasonable expectation of privacy in the . . .
items that they discarded.”194
189 RESTATEMENT (SECOND) OF TORTS, §652B (1997). 190 Id. 191 California v. Greenwood, 486 U.S. 35, 40-41 (1988). 192 Id. 193 Id. 194 Id. (quoting United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981)).
36
The Supreme Court of Illinois upheld this notion in People v. Stage,195 when it held that
the “long-standing precedent in Illinois is that an individual has no reasonable expectation of
privacy protection in [her] garbage.”196
Since Carrie’s garbage was not located on her private property, but, instead, was “left on
or at the side of a public street,”197 Carrie cannot have had a reasonable expectation of privacy in
the items that she discarded in that trash bag. Therefore, she cannot bring a claim for invasion of
privacy through intrusion upon seclusion with regard to Randall taking her trash bag and going
through its contents.198
IV. Looking Ahead
It is commonly known that paparazzi face immense pressure from media outlets to get
high-quality, exclusive photographs of celebrities. As a result, many media photographers are
willing to break the law and go to extreme measures in order to get a particularly exclusive
photograph, for which media publishers will often pay a lot of money. This, however, leaves
celebrities vulnerable to invasions of their right to privacy. While celebrities should not be
entitled to greater protection for their privacy interests than other individuals, the position that
celebrities hold in the public limelight comes with public attention and, thus, more frequent and
intrusive privacy invasions.
Some celebrities may tolerate or even invite such attention from paparazzi, no matter the
cost of losing their privacy, but many others value their right to privacy and rely on the courts to
help them conserve and uphold this right. The solution to these opposing positions, however,
does not necessarily lie solely in the willingness of the courts to take on the paparazzi and media 195 People v. Stage, 785 N.E.2d 550, 552 (Ill. App. Ct. 2003). 196 Id. 197 California, 486 U.S. 35 at 40-41. 198 Id.
37
outlets after privacy invasions. Ideally, media publishers should regulate the behavior of their
staffs and paparazzi and enforce their own standards of acceptability in newsgathering practice,
rather than risk having their rights limited by unsympathetic courts and legislatures. In doing so,
everyone’s best interests could be served by maintaining a free press while being sure to respect
the privacy rights of individuals. In reality, though, such a balance is not as simple as it sounds.
Competition for exclusive photographs is high, and the payout can be even higher.
It is notable that there has only been one case in the Supreme Court of Illinois where the
tort of unreasonable intrusion upon seclusion was expressly recognized.199 As the law progresses,
the courts in Illinois and across the United States must continue to protect the privacy rights of
individuals and punish the paparazzi who break the law. This can be achieved by expressly
recognizing the four variants of an invasion of privacy that are detailed in the Restatement.200
These four variants are wholly inclusive, in that almost any type of invasion of privacy that is
imaginable can fit within one of the four variants.
In considering the intrusion upon seclusion tort in Illinois in particular, it seems that the
Restatement’s explanation of such an invasion of privacy, combined with the four-part common
law test for such an intrusion as laid out in Melvin,201 will sufficiently protect Illinois constituents
in Carrie’s position from ruthless paparazzi such as Randall, who will often stop at nothing to get
their desired photograph.
199 Lawlor, 983 N.E.2d 414 (Ill. 2012), reh'g denied (Jan. 28, 2013). 200 RESTATEMENT (SECOND) OF TORTS, §652A (1997). 201 Melvin v. Burling, 490 N.E.2d 1011 (Ill. App. Ct. 1986).
