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