The privacy tort of intrusion upon seclusion often evokes thoughts of physical intrusion as well as electronic or mechanical intrusion such as video surveillance or telephone recording. The Restatement (Second) of Torts § 652B defines intrusion upon seclusion as “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” There are a few requirements that a plaintiff must prove in order to have a successful intrusion upon seclusion claim. They are the following.
Intent to intrude:
1. The existence of a secret and private subject matter,
2. The plaintiff’s right to keep that subject matter private, and
3. The obtainment by the defendant of information about that subject matter through unreasonable means.
Thomas v. Corwin, 483 F.3d 516, 531 (8th Cir. 2007). In other words, the intrusion upon seclusion involves the acquisition of private information through “unreasonable means.”
Highly offensive to a reasonable person
The intrusion upon someone’s seclusion must be substantial to give rise to an intrusion upon seclusion claim. The offensiveness of the intrusion must be great and the factors that the court looks to in considering the degree of the inclusion are: context, conduct, and circumstances surrounding the intrusion. The court will also look to the intruders motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded. Baur v. Ford Motor Credit Co., 149 F.Supp.2d 1106,1009 (D. Minn. 2001). In Minnesota, there must be a degree of repugnance in order to have a successful intrusion upon seclusion claim. Fabio v. Credit Bureau of Hutchinson, Inc., 210 F.R.D 688 (D. Minn. 2002).
Reasonable expectation of privacy of the matter
Any individual bringing forth an intrusion upon seclusion claim must have a reasonable expectation of privacy. If someone does not have a reasonable expectation of privacy then the information is considered public. Phillips v. Grendahl, 312 F.3d 357 (8th Cir. 2002). Minnesota courts have not fully explained or defined reasonable expectation of privacy, but Minnesota courts have applied the Restatement’s examples of unreasonableness—such as the surreptitious recording of a telephone conversation.
There are a number of defenses to an intrusion upon seclusion claim including public property, consent, common custom, and waiver. If an intrusion was done on public property then it is unlikely that a claim of invasion of privacy will be successful. If a plaintiff voluntarily provides private information, or provides consent, then that is a defense to an intrusion upon seclusion.
If an intrusion is deemed to be customary or common usage then it does not rise to the level of intrusion upon seclusion. In the case Florida Pub. Co. v. Fletcher, a reporter took a photograph of a fire victim per the orders of the fire marshal who had run out of film. The Florida Supreme Court decided that there was no invasion of privacy because it is customary for reporters to be alongside public officials at disasters. 340 So.2d 940 (Fla. 1976).
Lastly, any waiver to the right to have your privacy protected will defeat an intrusion upon seclusion claim. The definition of a waiver is a “voluntary an intentional relinquishment or abandonment of a known right.” Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 304 (Minn. 1990).