Reference no: EM131281690

Defendant Stacy Lescht, a reporter employed by defendant American Broadcasting Companies, Inc. (ABC), obtained employment as a "telepsychic" with the Psychic Marketing Group (PMG), which also employed plaintiff Mark Sanders in that same capacity. While she worked in PMG's Los Angeles office, Lescht, who wore a small video camera in her hat, covertly videotaped her conversations with several coworkers, including Sanders. Sanders sued Lescht and ABC for, among other causes of action, the tort of invasion of privacy by intrusion.

Although a jury found for Sanders on the intrusion cause of action, awarding $335,000 in compensatory damages and $300,000 in punitive damages, the court of appeals reversed the resulting judgment in his favor because Sanders could have had no reasonable expectation of privacy in his workplace conversations, as such conversations could be overheard by others in the shared office space. The California Supreme Court granted review to determine whether the fact that a workplace interaction might be witnessed by others on the premises necessarily defeats, for purposes of tort law, any reasonable expectation of privacy the participants have against covert videotaping by a journalist.] WERDGAR, J....

Discussion Question: May a person who lacks a reasonable expectation of complete privacy in a conversation because it could be seen and overheard by coworkers (but not the general public) nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation? Answer: Yes. Neither the trial court nor the Court of Appeal had the benefit of our recent decision in Shulman v. Group W Productions, Inc., supra, 18 Cal. 4th 200 (1998) (Shulman).... This case squarely raises the question of an expectation of limited privacy.

On further consideration, we adhere to the view suggested in Shulman: privacy, for purposes of the intrusion tort, is not a binary, allor-nothing characteristic.... Defendants' claim, that a "complete expectation of privacy" is necessary to recover for intrusion, ... fails as inconsistent with case law as well as with the common understanding of privacy. Privacy for purposes of the intrusion tort must be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion.

As seen below, moreover, decisions on the common law and statutory protection of workplace privacy show that the same analysis applies in the workplace as in other settings; consequently, an employee may, under some circumstances, have a reasonable expectation of visual or aural privacy against electronic intrusion by a stranger to the workplace, despite the possibility the conversations and interactions at issue could be witnessed by coworkers or the employer.... Doe by Doe v. B.P.S. Guard Services, Inc. (8th Cir. 1991) 945 F.2d 1422 illustrates the existence of limited, but reasonable, visual privacy in the workplace.

A fashion show was being held at a convention center. The organizers had set up a curtained dressing area for the models, unaware that the area was visible on one of the convention center's security cameras. Guards in the security control room used the surveillance camera to watch and videotape the models changing clothes. (Id. at p. 1424.) Nothing in the opinion suggests the curtained changing area, used by all the models and presumably accessible to the show's director and assistants, was a place of complete seclusion for any of the models. Nonetheless, the appellate court, in an action for common law invasion of privacy, had no difficulty discerning a reasonable expectation of privacy on the models' part, violated in this circumstance by a visual "invasion by strangers." ...

We conclude that in the workplace, as elsewhere, the reasonableness of a person's expectation of visual and aural privacy depends not only on who might have been able to observe the subject interaction, but on the identity of the claimed intruder and the means of intrusion. (Shulman, supra, 18 Cal. 4th at pp. 233-235; Dietemann v. Time, Inc. supra, 449 F.2d at p. 249; Huskey v. National Broadcasting Co., Inc., supra, 632 F.Supp. at pp. 1287-1288; Nader v. General Motors Corporation, supra, 307 N.Y.S.2d at p. 655; Pearson v. Dodd, supra, 410 F.2d at p. 704; Walker v. Darby, supra, 911 F.2d at p. 1579.)

For this reason, we answer the briefed question affirmatively: a person who lacks a reasonable expectation of complete privacy in a conversation, because it could be seen and overheard by coworkers (but not the general public), may nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation. Defendants warn that "the adoption of a doctrine of per se workplace privacy would place a dangerous chill on the press' investigation of abusive activities in open work areas, implicating substantial First Amendment concerns." (Italics in original.) We adopt no such per se doctrine of privacy.

We hold only that the possibility of being overheard by coworkers does not, as a matter of law, render unreasonable an employee's expectation that his or her interactions within a nonpublic workplace will not be videotaped in secret by a journalist. In other circumstances, where, for example, the workplace is regularly open to entry or observation by the public or press, or the interaction that was the subject of the alleged intrusion was between proprietor (or employee) and customer, any expectation of privacy against press recording is less likely to be deemed reasonable.

Nothing we say here prevents a media defendant from attempting to show, in order to negate the offensiveness element of the intrusion tort, that the claimed intrusion, even if it infringed on a reasonable expectation of privacy, was "justified by the legitimate motive of gathering the news." (Shulman, supra, 18 Cal. 4th at pp. 236-237.) As for possible First Amendment defenses, any discussion must await a later case, as no constitutional issue was decided by the lower courts or presented for our review here....

Case Questions

1. Identify the "intrusion on seclusion" in this case.

2. Was the court of appeal correct in setting aside the jury verdict in favor of the plaintiff because there must be a complete expectation of privacy to recover for intrusion and other employees could hear the conversations in question?

3. How does the court deal with ABC's argument that an adverse decision would have a chilling effect on the press's investigation of abusive activities in open work areas?