Trespass
a. Introduction
The victim of the nonconsensual online publication of intimate photographs or videos may bring an action against the person who published the material if the perpetrator obtained the image by trespassing into the victim’s home or personal property (such as the victim’s computer).
b. Elements of the Claim
“[A]n unlawful interference with possession of property”1
c. Cases
- Bedolla v. Aglony, No. H032125, 2009 Cal. App. Unpub. LEXIS 755 (Cal. Ct. App. Jan. 28, 2009).
Procedural Posture: Jury found for plaintiff and awarded her compensatory damages for past and future emotional distress. The jury also awarded her punitive damages. Defendant moved for a new trial claiming that the evidence was insufficient to support the finding that he had spied on the plaintiff and that the amount awarded for future emotional distress was excessive. He also claimed that the award of punitive damages was excessive and improper. Plaintiff moved to triple her general damages award pursuant to Civ. Code 1708.8(d). Both defendant’s and plaintiff’s motions were denied.
Law: Civil – common law invasion of privacy and statutory invasion of privacy under Cal. Civ. Code § 1708.8; (trespass is an element of the statutory tort under Section 1708.8)
Facts: Defendant, plaintiff’s neighbor, made a hole in the wall of plaintiff’s bedroom through which he spied on her. The police found evidence that the defendant owned a video surveillance camera, through which he was able to view inside the plaintiff’s bedroom. When plaintiff discovered the hole in her bedroom wall, she called the police and moved in with her mother. The plaintiff was seven months pregnant at the time. Upon finding out that her neighbor had been spying on her, plaintiff said she felt ‘[m]ad, scared, embarrassed, humiliated, a lot things.” She testified that she would regularly stand in front of the mirror nude after showering. The plaintiff received counseling for six months afterwards and claimed to still be reliving the experience and thinking about it each day.
Outcome: Affirmed. The court found that the award of future damages was adequately supported by the evidence and that a jury could reasonably infer that the plaintiff would continue to suffer fear and embarrassment. The court also concluded that the damages awarded were reasonable and that the jury’s award had not been the result of “undue passion or prejudice.” The use of a video camera to spy on the plaintiff merited a higher award per Cal. Civ. Code § 1708.8, which requires the use of an audio or video recording device in contrast to the common law invasion of privacy tort. The court noted that Cal. Civ. Code § 1708.8 does not solely apply to paparazzi situations.
- Ault v. Hustler Magazine, 860 F.2d 877 (9th Cir. 1988).
Procedural Posture: Trial court dismissed appellant’s claims for libel and intentional infliction of emotional distress because the statute of limitations had run out. The trespass claim was also dismissed for failure to state a claim.
Law: Invasion of privacy, libel, intentional infliction of emotional distress, trespass and conversion
Facts: Defendant Hustler Magazine published an article featuring plaintiff Ault as “Asshole of the Month.” Plaintiff is the founder of Citizens in Action, which organizes opposition to adult video stores. She also lobbies the legislature to enact anti-pornography laws as part of Citizens for Legislation Against Decadence. In the Hustler article, a small picture of plaintiff was superimposed on the rear-end of a bent-over nude male.
Outcome:
- Intentional Infliction of Emotional Distress: Affirmed. Defendant’s publication of the photo was constitutionally protected speech (“privileged opinion”). Plaintiff’s claim for intentional infliction of emotional distress therefore cannot be supported whether plaintiff is a public figure or private person for First Amendment purposes.
- Trespass: Affirmed. Trespass is an invasion of a possessor’s interest in land.
d. Practice Pointers
- Note that trespass is an element of a claim under Cal. Civ. Code § 1708.8 (the Anti-Paparazzi Act).
- For claims of both conversion and trespass against chattels, the tangibility of the data obtained may be an issue. California courts have not come to a clear decision concerning the application of property torts to intangible goods. See Olschewski v. Hudson, 87 Cal. App. 282 (1927) (Newspaper route was intangible so could not be the basis of a conversion claim); Payne v. Elliot, 54 Cal. 339 (1880) (Shares of stock could be the subject of a conversion claim); Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1566 (1996)(Stating, “Whether the intangible computer access code, which was never reduced to paper or reflected on a computer disk [. . .] could be the subjects of conversion presents an issue of first impression in California,” but then declining to decide the issue and finding the defendants liable for trespass instead); and, eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1069 (N.D. Cal. 2000) (finding it “likely that the electronic signals sent by [Bidder’s Edge] to retrieve information from eBay’s computer system are . . . sufficiently tangible to support a trespass cause of action”).
- 1. County of Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313, 332 (Cal. Ct. App. 2006).