Liability for intrusive or harassing newsgathering activities

Unlike the other three privacy torts, intrusion on seclusion (like the tort of trespass) is a tort of information gathering, not one based on the actual information that is published. Intrusion is said to be an intentional physical, electronic or mechanical invasion of a person’s solitude or seclusion that would be highly offensive to a reasonable person. It includes some secretly recorded conversations, overly aggressive surveillance and the use of telephoto lens to capture photographs. Because intrusion is based on offensive prying and not the publication of offensive material, you may be liable for intrusion regardless of what you learned through the intrusive act and whether you published the information.

Whether an act intrudes on the privacy of another depends on whether that person has a reasonable expectation of privacy. The general rule is that people may photograph, film and record what they can easily see or hear in public places, provided they do not harass, trespass or otherwise intrude. If you are unsure whether a particular place would be considered public -- a restaurant, for example -- ask yourself if it is the type of place where you, if you were there, would reasonably assume that secret photographs would not be taken or secret recordings made. The answer may be different for a private dining room reserved for one diner and his or her guests and a large dining room in which customers that enter off the street and ask to be seated are served.

Analogized to the digital context, the interception of Internet file-sharing activities is not actionable intrusion because "there is no expectation of solitude or seclusion when a person activates a file sharing program and sends a file to the requesting computer" on a public computer network like the Internet, according to one court. Likewise, the intermingling of personal and business records, on computers and e-mail provided by the employer, lifts any veil of privacy that may have applied in an employee's intrusion claim based on the employer's reading, using and distributing the employee's personal and private documents without his authorization or knowledge, another court recently held.

Overzealous surveillance, even if it occurs in public, may give rise to intrusion claims or, in some cases, harassment or stalking suits. These activities could include the constant monitoring of a subject’s comings and goings from a vehicle parked near his or her home, following subjects to and from their home and places they visit and using video cameras, binoculars or “shotgun microphones” capable of picking up conversations from long distances. These tactics, often the hallmark of celebrity journalists, led many states to enact anti-paparazzi laws, which create statutory liability, in some states both civil and criminal, for newsgathering activities that involve such harassment.   

Thus, digital journalists who engage in aggressive interviewing and other arguably intrusive newsgathering activities should research the law of their states to find out whether there is an anti-paparazzi law on the books and what type of conduct constitutes intrusion under the invasion of privacy tort.