Privacy is a major concern for Floridians, so much so that there is a section of our state constitution devoted to protecting citizens from government intrusion into one's private life. But what happens when someone other than the government starts prying into your private life?
Florida recognizes the common law tort of intrusion, otherwise known as intrusion upon seclusion. Intrusion is defined as "wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities." State Farm Fire & Cas. v. Compupay, Inc., 654 So.2d 944 (Fla. Dist. Ct. App. 1995). Unlike other privacy torts like defamation, intrusion does not require publication to others as an element; the intrusion alone is actionable.
So what kind of intrusions are covered? Actionable intrusion includes "physically or electronically intruding into one's private quarters." Allstate Ins. Co. v. Ginsberg, 863 So.2d 156, 162 (Fla. 2003). And we have already seen that private activities are covered as well. The place or activities intruded upon must be one in which there is a reasonable expectation of privacy. Id.
Let's pause here to consider what kinds of places this might include. Certainly, one's home and especially one's bedroom are covered. But what about more contemporary "places" like one's cell phone or email account? While the courts have not come to complete conclusions on electronic "places", if a person were to protect their cell phone or email account with a password or PIN, that should give rise to a reasonable expectation of privacy. And few things are more "personal" than one's cell phone. Hardly an hour goes by without the phone being used or at least on one's person or close belongings (purse, briefcase). This is certainly an area of the law that will grow as technological changes bring more devices into everyday use.
So assuming that the place intruded upon qualifies, does that mean that damages automatically result. Not quite. The intrusion must be highly offensive to a reasonable person. In a case of surveillance that might go too far, the surveillance itself "must have been done in a vicious and malicious manner not reasonably limited to a legitimate purpose." Catania v. Eastern Airlines, Inc., 381 So.2d 265, 268 (Fla. Dist. Ct. App. 1980). Malice can be found from "a motive to harm the plaintiff by the activity engaged in." Pinkerton National Detective Agency, Inc. v. Stevens, 132 S.E.2d 119, 124 (Ga. Ct. App. 1963). Surveillance is a common source of intrusion upon seclusion actions. Take this current case involving a Subway co-founder and recording equipment that led to a falling out and legal action between the co-founder and a former real estate partner in West Palm Beach.
Actionable intrusion needs to cause outrage or mental effects in order to become tortious. Physical or mental impairment must flow naturally from the tort itself as a consequence of the intrusion. Id. There must be some "mental impairment as opposed to mere fright, shock and hurt feelings." Id.
As our private lives become more and more public with the advent of technology, social media, and the ease of recording with a smartphone, I believe that claims of tortious intrusion upon seclusion will grow. The law already has adequate safeguards to provide recovery only for those actions that pry directly into places and activities that are meant to be private. Further, the law reduces the risk of frivolous lawsuits by requiring outrage and mental impairment to flow from the intrusion.
No comments:
Post a Comment