Court Holds Actual Viewing or Recording Unnecessary to Establish a Cause of Action for Invasion of Privacy

Plaintiffs were employed in clerical positions on campus of defendants' residential facility for abused and neglected children. In response to a tip by their computer technician that some of their computers, including the one in plaintiffs' office, were being used to access pornographic websites at night, defendants installed a motion-activated camera in plaintiffs' office without their knowledge or consent. On one occasion, the camera was installed after plaintiffs left for the day and then removed before they arrived the next morning. Thereafter, however, the functioning camera was left in plaintiffs' office, but its wireless receptor was only connected by defendants to a TV monitor and recorder on two occasions at night.

After discovering the camera, plaintiffs sued for invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. The trial court entered summary judgment for defendants on all claims, finding that plaintiffs could not prevail because 1) they were not actually recorded or viewed by means of the camera; 2) they had a diminished expectation of privacy given the characteristics of their office; and 3) defendants' need to protect the children residing at their facility overcame this diminished expectation of privacy. The appellate court reversed as to the invasion of privacy claim and affirmed as to the claims for intentional and negligent infliction of emotional distress.

The court noted the two elements of invasion of privacy: 1) intrusion into a private place, conversation or matter and 2) an achievement of this intrusion in a manner highly offensive to a reasonable person. Following the Restatement approach, the court noted that liability flows from the intrusion itself, even when there is no publication. Citing Shulman v. Group W Productions, Inc., 18 Cal.4th 200 (Cal. 1998), the court held that access to information about the plaintiffs rather than capture or observation of that information is the essential component of intrusion.

The court then found defendants had failed to establish that plaintiffs did not have a reasonable expectation of privacy in their office. Allowing that plaintiffs did not enjoy complete privacy in their office due to several of its characteristics, the court nonetheless found that it was reasonable for plaintiffs to expect images of the office would not be transmitted to another part of the building. The court then found that a reasonable jury could conclude such an intrusion is highly offensive. Finally, the court held defendants had failed to conclusively establish their surveillance was justified, both because evidence regarding the severity of the pornography problem was lacking and because, since plaintiffs themselves were not suspected of accessing pornographic websites, the camera did not need to be concealed in the office while they were working in order to address the problem.

Regarding the claim of intentional infliction of emotional distress, the court found that, as a matter of law, because defendants did not intend to spy on plaintiffs or activate the camera when they were not in the office, their conduct was not "extreme and outrageous" as required by the tort. With respect to the claim for negligent infliction of emotional distress, the court found that plaintiffs failed to allege a duty breached and that the claim was factually superfluous given the cause of action for invasion of privacy. Appeal was entered and the California Supreme Court has granted certiorari.

SHORT:

Plaintiffs, employed on the campus of defendants' residential facility for abused and neglected children, appealed the entry of summary judgment for defendants on their invasion of privacy and related claims. Defendants had installed a video camera in plaintiffs' office without their knowledge or consent, but only connected the camera's wireless receptor to monitoring and recording equipment after plaintiffs went home for the day, disconnecting the receptor again in the morning before they arrived for work. The California appellate court held that actual viewing or recording of plaintiffs was not necessary to their invasion of privacy claim; rather, the creation of access to such information was actionable.