Invasion of Privacy--Intrusion
An intrusion claim is particularly appropriate for victims who were filmed or photographed without their knowledge.
b. Elements of the Claim
(1) Intrusion into a private place, conversation, or matter;
(2) in a manner highly offensive to a reasonable person.1
- Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (C.D. Cal. 1998).
Procedural Posture: Plaintiff filed a motion for a preliminary injunction to enjoin defendant from disseminating a videotape depicting plaintiff having sex with Pamela Anderson Lee.
Law: Copyright infringement, false designation of origin under the Lanham Act, state-law invasion of privacy based on publicity of the tape over Westwood One’s radio affiliates, violation of California common law right of publicity and violation of the California statutory right of publicity under Cal. Civ. Code § 3344.
Facts: Approximately three years after plaintiff and Lee made a sex tape, defendant (a corporation that distributes adult entertainment material through a subscription service on the internet) sent plaintiff a letter advising him they had acquired the tape and all rights necessary to publish it. Plaintiff’s lawyer advised defendant that plaintiff had not authorized the distribution of the tape and that publication of the tape would violate plaintiff’s copyright therein. The letter included demand that defendant cease and desist from attempts to disseminate or exploit the tape. In 1998, plaintiff registered the tape with the Register of Copyrights. Plaintiff filed an ex parte motion for a temporary restraining order to prohibit defendant from duplicating, publishing, promoting, marketing or advertising the tape, alleging that defendant said it would publish the tape on ClubLove, its internet subscription service. At a deposition, Revilla, private investigator who gave the tape to defendant, said that the tape had come from one of plaintiff’s associates who had received it as a gift. Revilla negotiated with defendant and made it clear that he was offering “only the physical Tape, not any intellectual property rights in the expression fixed on the Tape.”
- Preliminary injunction granted.2
- Intrusion: “For purposes of this motion, the court determines that the plaintiffs are likely to convince the finder of fact that sexual relations are among the most private of private affairs, and that a video recording of two individuals engaged in such relations represents the deepest possible intrusion into such affairs.”
“IT IS HEREBY ORDERED that, pending final judgment or dismissal of this action, defendant IEG and its agents, officers, employees, attorneys, and those acting in concert with them are temporarily restrained from:
1. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of the Michaels/Lee videotape (the “Tape”);
2. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of still photographs from the Tape, captured images from the Tape displayed on the Internet, and/or any downloaded hard copies of images from the Tape;
3. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of all advertising, promotional material, or packaging referring to the Tape;
4. Taking orders for copies of the Tape through the Internet or any other means;
5. Shipping copies of the Tape to those purchasers who already have placed orders for copies of the Tape, or to anyone else; and
6. Using Michaels's or Lee's name, likeness or identity in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”
- Lorenzo v. United States, 719 F. Supp. 2d 1208 (S.D. Cal. 2010).
Procedural Posture: Border Patrol Agent and his wife sued the Customs and Border Patrol Agency after a video depicting agent shooting illegal immigrant circulated the web. The U.S. filed a motion to dismiss.
Law: Violation of Privacy Act, 5 U.S.C. § 552a; Invasion of privacy—Public Disclosure of Private Facts; Invasion of privacy—False Light; Invasion of privacy—Intrusion Into Private Affairs; Negligent Supervision (probably not applicable to our cases); Negligent Infliction of Emotional Distress
Facts: Although the situation is different, the harm described in this case is very similar to the harm that results from the online publication of intimate images: “death threats, contempt, ridicule, financial and emotional distress and harm to their reputations.”3 Here, plaintiff shot an illegal immigrant and the Customs and Border Protection Agency released the video of the shooting complete with plaintiff’s name and rank, and the seal of the Department of Homeland Security. The video circulated widely on the internet.
Outcome: False light and negligent supervision dismissed because barred by sovereign immunity; public disclosure dismissed because event was newsworthy; intrusion dismissed because event took place in a public setting; wife’s Privacy Act claim dismissed due to lack of standing; negligent infliction of emotional distress not dismissed.
d. Practice Pointer
Many of the California criminal cases listed on this website appear to state facts that would constitute an intrusion claim.