August 28, 2012
Fred Shackelford, Senior Attorney, National Legal Research Group
If an individual unsuccessfully attempts to monitor another's private activities, can he or she be held liable for invasion of privacy? The Iowa Supreme Court decided this issue in the case of Koeppel v. Speirs, 808 N.W.2d 177 (Iowa 2011). In Koeppel, an employee, Koeppel, discovered a video camera in a bathroom at her workplace. An investigation revealed that her employer, Speirs, had hidden the camera there in an effort to monitor another employee's activity, allegedly because he suspected that she was abusing drugs or engaging in other conduct detrimental to his business.
The camera, which was pointed toward a toilet, was designed to transmit a signal to a receiver located in Speirs's office, where it could be monitored. The camera's battery had a useful life of only a few hours, and at the time it was discovered, its battery was dead. However, when police replaced the battery, the camera operated, and the monitor briefly displayed a "snowy, grainy, foggy" image before its screen displayed a "no signal" message. Speirs claimed that he had not been able to detect an identifiable picture on the monitor and had planned to remove the camera from the bathroom.
Koeppel sued in tort for invasion of privacy—specifically, for the branch of this tort known as "unreasonable intrusion upon the seclusion of another." The trial court granted summary judgment for Speirs, holding that the tort required an actual, rather than an attempted, intrusion.
On appeal, the Iowa Supreme Court first analyzed the general nature of the tort at issue. The court observed that the cause of action is based upon the particular method that is used to obtain information, not the content of whatever information is obtained or how the information may be used or disseminated. The court recited the two elements of the tort: (1) that there be an intentional intrusion into a matter in which a plaintiff has a right to expect privacy, and (2) that the intrusion be highly offensive to a reasonable person. The court noted that although Restatement (Second) of Torts § 652B does not specifically define "intrusion," that section's illustrations include examples such as taking photographs of a sick patient in a hospital or of activities in a neighbor's bedroom, or installing a recording device on another's telephone.
Speirs conceded that placing a camera in a bathroom would be highly objectionable to a reasonable person, but the parties disagreed about what proof is required to establish that an intrusion occurred. The Koeppel court reviewed case law from various other jurisdictions, noting that other courts are divided on the question of whether a person can intrude without actually viewing or recording the victim. The court agreed with the approach taken by the New Hampshire Supreme Court in Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964), in which the court held that plaintiffs whose bedroom was bugged were not required to prove that the defendant landlord actually overheard or viewed activities in a secluded place. Instead, the Hamberger court found that an intrusion occurs when the defendant performs an act that has the potential to impair a person's peace of mind and comfort associated with an expectation of privacy. The Koeppel court reasoned as follows:
[W]e find the approach taken in Hamberger and its progeny is more consistent with the spirit and purpose of the protection of privacy. The secret use of an electronic listening or recording device is abhorrent to the interests sought to be protected by the tort. Amati, 829 F.Supp. at 1010. The approach is also consistent with the path we have started to follow. See Tigges, 758 N.W.2d at 829 (finding the installation of equipment, recording activities with the equipment, and attempting to view the activities recorded established an intentional intrusion). Additionally, the comments and illustrations contained in the Restatement (Second) of Torts make no suggestion that the intrusion into solitude or seclusion requires someone to actually see or hear the private information. See Restatement (Second) of Torts § 652B illus. 3, at 379. Finally, the minority rule fails to provide full protection to a victim, while giving too much protection to people who secretly place recording devices in private places. Direct evidence that an actual viewing occurred can be difficult to establish, and a person who is inclined to secretly place a camera in a private area can easily incapacitate the camera when it is not in use so as to minimize any responsibility upon discovery. A plaintiff who learns a camera was placed in a private place should not be forced to live with the uncertainty of whether an actual viewing occurred. Such an approach would leave those victims with a reasonable belief that someone could have listened to or seen a private moment without a remedy simply because the device was unable to actually operate to invade privacy at the time it was discovered.
808 N.W.2d at 184.
The court ruled that in cases involving an electronic device, there must be proof that the equipment was "functional," although it does not have to be "operational" at the time it is discovered. Id. at 184-85. There is no liability "if the device was not capable of being configured or operated to transmit or record in any conceivable way." Id. at 184. However, the court added that "[e]ven though the act of intentionally placing an inoperable camera or recording device into a private area may not support the intrusion element of invasion of privacy, it could give rise to the tort of intentional infliction of emotional distress." Id. at 185 n.2. The court ruled that the trial court had improperly granted summary judgment for Speirs, stating:
In this case, Speirs presented evidence tending to dispute Koeppel's claim the battery‑operated camera could have functioned at any time when she was in the bathroom. This evidence tended to show the camera did not send a strong enough signal to Speirs' office that would have exposed her privacy. Yet, Koeppel submitted evidence that the camera was capable of working when a fresh battery was in place. Under the standard we adopt in this case, a reasonable fact finder could conclude the camera was capable of exposing the plaintiff's activities in the bathroom. Importantly, there was evidence the camera was capable of operation, and there was evidence it operated in the past from a different location in the office. This evidence meets the standard and would lead a reasonable person to believe his or her privacy had been invaded.
Id. at 185.
Finally, the court emphasized that it was not recognizing a cause of action for attempted invasion of privacy. The court explained:
Speirs argues that a standard of intrusion that does not require evidence that the camera actually functioned to record an image essentially creates a tort of attempted invasion of privacy. We disagree. We recognize attempted conduct normally does not give rise to an intentional tort because the required element of actual harm does not occur. See Anthony J. Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell, 64 Md. L.Rev. 541, 565 (2005) [hereinafter Sebok]. It is axiomatic that there can be no tort if there is no injury. See United States v. Stefonek, 179 F.3d 1030, 1036 (7th Cir.1999) ("[T]here is no tort without an injury . . . a litigant may not complain about a violation of rights that does not harm the interest (whether in privacy or in a fair trial) that the rights protect. (There are no 'attempted torts.')."); see also Sebok, 64 Md. L.Rev. at 565. Thus, we agree with Speirs that our law does not recognize a tort of attempted invasion of privacy. See Meche, 692 So.2d at 547. However, the act of intrusion is complete once it is discovered by the plaintiff because acquisition of information is not a requirement. Phillips v. Smalley Maint. Servs., Inc., 435 So.2d 705, 709 (Ala.1983) (citing Restatement (Second) of Torts § 652B illus. 5, at 379). Additionally, harm from intrusion arises when the plaintiff reasonably believes an intrusion has occurred. See Amati, 829 F.Supp. at 1010 (recognizing same proposition). Therefore, the standard we establish to satisfy the intrusion element does not create a claim for attempted invasion of privacy.
Id.
As modern technology continues to produce devices that may be used to record the private activity of unwitting victims, the Koeppel precedent may ease the burden of plaintiffs as they attempt to prove the elements of the tort of invasion of privacy.
