What types of conduct are considered offensive?

In two of the privacy torts -- publication of private facts and intrusion -- an element of offensiveness is required. In this context, courts have defined offensive conduct as that which is “so unwarranted” as to shock or “outrage the community’s notions of decency” or  “a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.”

Various courts have held publication of the following to be sufficiently offensive to give rise to a privacy-facts claim:

• a magazine story about a woman’s unusual eating disorder, which caused her to lose weight even though she consumed large amounts of food, accompanied by a photograph of the woman, taken against her will as she lay in a Missouri hospital bed;

• a broadcast of a child talking to her mother during a therapy session and demonstrating with anatomically correct dolls how her father had allegedly abused her sexually;

• photographic depictions of people engaged in sexual conduct; and

• “before” and “after” photographs of a cosmetic-surgery patient.

The following activities would likely constitute a prying into the private domain of another sufficiently offensive to support an intrusion claim:

• use of a telescopic lens to photograph people engaged in intimate activity in their bedrooms or bathrooms;

• a debt collection agency's placement of more than 100 telephone calls over a five-month period to a consumer's cell phone, even after the consumer notified agency representatives that he had already made final payment on the debt; 

• installation of a tap and recording device on a person’s telephone wires to intercept and tape his or her conversations (to which the recording subject is not a party);

• use of a mirror to see a skirt-wearing woman’s underwear or other means of viewing private items not exhibited to the public gaze;

• trailing subjects on public property for hours on end; and

• audio and video recording accident victims inside a rescue helicopter.