The tort of intrusion into private affairs “encompasses unconsented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying.” Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 230.

“Intrusion does not raise first amendment difficulties since its perpetration does not involve speech or other expression. It occurs by virtue of the physical or mechanical observation of the private affairs of another, and not by the publication of such observations.” Miller v. Nat’l Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1490 citing Nimmer, The Right to Speak From Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy (1968) 56 Cal. L.Rev. 935, 957).

To state a cause of action for intrusion into private affairs, the following elements must be alleged:

1. Description of physical area, plaintiff’s sensibility, privacy or private data plaintiff alleges was invaded by defendant;
2. Plaintiff’s reasonable expectation of privacy;
3. The invasion was in a manner highly offensive to a reasonable person;
4. Lack of consent.

(Sanders v. Am. Broadcasting Corp. (1999) 20 Cal.4th 907; see also Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 421.)

The element of intrusion “is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place. Rather, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.” (Id. at 914-15.)

The reasonableness of privacy expectations relies on such factors as

1. the identity of the intruder,
2. the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and
3. the means by which the intrusion occurred.

(Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 287.)

“Plaintiffs must show more than an intrusion upon reasonable privacy expectations. Actionable invasions of privacy also must be ‘highly offensive’ to a reasonable person, and ‘sufficiently serious’ and unwarranted as to constitute an ‘egregious breach of the social norms.’” (Hernandez v. Hillsides, Inc (2009) 47 Cal.4th at 274, 295.)

Examples

Recordings

Recording auto accident victims, including of the victims’ comments to rescuers, was found to be potentially highly offensive to a reasonable person in Shulman v. Group W. Productions, Inc. (1998) 18 Cal.4th 200. The woman in the accident was rendered a paraplegic and was dismayed to see herself on television when she had not consented to a recording. “California courts have recognized both of the privacy causes of action pleaded by plaintiffs here:

1. public disclosure of private facts, and
2. intrusion into private places, conversations or other matters.”

(Id. at 214.)

The case described the following “elements of the public disclosure tort:

1. public disclosure
2. of a private fact
3. which would be offensive and objectionable to the reasonable person and
4. which is not of legitimate public concern.”

(Id. at 214, citing Diaz v. Oakland Tribune, Inc. (1983) 139 Cal. App. 3d 118, 126, internal quotations omitted.) The fact publicly disclosed in Diaz was that the plaintiff had gender-change surgery.

The issue whether there exists a reasonable expectation that no one is secretly recording or listening to a phone conversation is generally a question of fact. (Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1396.)

In Sanders v. ABC (1999) 20 Cal.4th 907, the issue was the privacy of persons recorded while working at a telepsychic marketing company. That case held that the expectation of privacy did not have to be complete for a tort of invasion of privacy to attach. The court affirmed that “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 [has] a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation...” (Id. at 914.)

Penal Code section 632 prohibits the intentional recording of a “confidential communication” without the consent of all parties to the communication. (Hataishi v. First American Home Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, 1463.) “A section 632 violation is committed the moment a confidential communication is secretly recorded regardless of whether it is subsequently disclosed.” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 164.)

Photographs

An early case on the issue of photographs and privacy is Gill v. Curtis Pub. Co. (1953) 38 Cal.2d 273. There, a couple was photographed by an employee in an affectionate pose at the LA Farmer’s Market, and the photograph was published with an accompanying article in Ladies Home Journal, without their permission. [T]he caption under the picture describes it as “love at first sight” and the article says such love is based on 100 per cent sex. It is not unreasonable to believe such would be seriously humiliating and disturbing to plaintiffs’ sensibilities, and it is so alleged, especially when we consider it deals with the intimate and private relationship between the opposite sexes and marriage. If the test is, as defendants claim, what an ordinary man would consider such, then it is a question for the trier of fact rather than one of law. (Gill v. Curtis Pub. Co. (1953) 38 Cal.2d 273, 280.)