No Harm, No Foul? “Attempted” Invasion of Privacy and the Tort of Intrusion Upon Seclusion

May 1, 2015

The tort of intrusion upon seclusion protects individuals from unwanted invasions into their personal space and personal affairs. While courts differ as to the precise definition and scope of this tort, at the most basic level, a claim for intrusion upon seclusion alleges that the defendant has unreasonably interfered with the plaintiff’s legitimate interest in maintaining some degree of privacy in his or her personal affairs. This Note analyzes an interesting issue that has emerged concerning the application of this tort: Should a defendant be held liable when he or she has attempted to observe the plaintiff in a private setting but is ultimately unsuccessful?

Some courts have held that the mere placement of surveillance equipment that is capable of transforming a private space into a public one constitutes an intrusion, even if the defendant never uses the device to view or hear the plaintiff. Other courts, however, have held that the plaintiff must prove that the defendant overheard, viewed, or otherwise observed the plaintiff using the device. This Note analyzes the underlying basis and purpose of the intrusion tort and argues that a plaintiff should not need to prove that the defendant actually used the device to see or hear the plaintiff—in other words, the placement alone of surveillance equipment is an invasion of the plaintiff’s privacy and should be sufficient to state a claim for intrusion upon seclusion.

May 2015

No. 6