Invasion of Privacy – Intrusion

  1. Introduction

    An intrusion claim is particularly appropriate for a victim of the nonconsensual publication of private intimate images if those images were captured without the victim’s knowledge. This claim would be appropriate, for example, in a situation where the victim was secretly filmed in her home.

  2. Elements of a Claim

    “Under Nevada law, to recover for the tort of intrusion, a plaintiff must allege ‘1) an intentional intrusion (physical or otherwise); 2) on the solitude or seclusion of another; 3) that would be highly offensive to a reasonable person.’”1

    The following factors should be considered to determine whether a specific action is “highly offensive”: “the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.”2

  3. Cases

    1. People for the Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995)(overruled on unrelated grounds by City of Las Vegas Downtown Redev. Agency v. Hecht, 940 P.2d 134, 138 (Nev. 1997)).

      • Procedural Posture: Defendants appealed from a monetary judgment for Plaintiff based on his claims for invasion of privacy (and defamation).

      • Law: Invasion of privacy – intrusion upon seclusion (as well as defamation – libel and appropriation of name or likeness)

      • Relevant Facts: Defendant Gesmundo secretly videotaped Plaintiff abusing his show animals over the course of several days.3

      • Outcome: Reversed. The Court found that Defendant’s videotaping of Plaintiff’s interactions with his animals backstage did not constitute an actionable case of intrusion. The Court noted that Plaintiff’s concern was not that others would see him or hear him while he prepared backstage, thus invading his seclusion. In fact, various individuals were able to hear and see into Plaintiff’s ‘private area.’4 Instead, Plaintiff’s main concern was that he be free “from distracting intrusion and interference with his animals and pre-act disciplinary procedures.”5 Thus, Plaintiff did not have a reasonable expectation of privacy in his interactions with the animals backstage. The Court also dealt with the issue of whether Defendant’s camera was highly offensive to a reasonable person, which was a question of first impression in Nevada. After considering the factors listed in Miller v. Nat’l Broad Co. to determine whether Defendant’s camera would be highly offensive to a reasonable person,6 the Court concluded that “[Defendant’s] camera was not ‘highly offensive to a reasonable person’ because of the nonintrusive nature of the taping process, the context in which the taping took place and [Defendant’s] well-intentioned…motive.”7

  4. Practice Pointers

    The Nevada Supreme Court has recognized that being photographed in a public place does not constitute tortious intrusion.8 It is also not intrusion for, “police, acting within their powers, to photograph and fingerprint a suspect.”9

    The following are places that the Nevada Supreme Court has recognized as “traditionally associated with a legitimate expectation of privacy”: a private bedroom, hospital room, restroom, and a “young ladies’ dressing room.”10

  1. Flynn v. Liner, 2011 U.S. Dist. LEXIS 77217, *12-13(D. Nev. July 15, 2011)(quoting People for the Ethical Treatment of Animals v. Berosini, 895 P.2d 1269, 1279 (Nev. 1995)). 

  2. Id. at 1282 (citing Miller v. Nat’l Broad. Co., 232 Cal. Rptr. 668, 678 (Cal. Ct. App. 1986). 

  3. Id. at 1272. By secretly placing a video camera backstage to capture Plaintiff’s interactions with his animals, Plaintiff claims that Defendant “intruded upon his ‘seclusion.’”Id. at 1279. 

  4. Id. at 1280 n.18. 

  5. Id. at 1281. 

  6. Miller v. Nat’l Broadcasting Co., 232 Cal. Rptr. 668, 678 (Cal. Ct. App. 1986). 

  7. Id. at 1283. 

  8. Id. at 1279 (citing Gill v. Hearst Publishing Co., 253 P.2d 441 (Cal. 1953)). 

  9. Id. (citing Norman v. City of Las Vegas, 177 P.2d 442 (Nev. 1947)). 

  10. Id. at 1282.