Related to Defamation: Intrusion – Invasion of Privacy – in California

California defines intrusion as (1), intrusion into a private place, conversation, or matter, (2), in a manner highly offensive to a reasonable person. A defendant can defeat an intrusion claim if the plaintiff does not show the defendant penetrated some zone of physical or sensory privacy surrounding the plaintiff – or obtained unwanted access to data about the plaintiff. The defendant can also avoid the claim if the plaintiff lacked an objectively reasonable expectation of seclusion or solitude in the place, conversation, or data source.

Californians have a right to be left alone. “The right of privacy is the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity.” However, the right to be secure from intrusion is not absolute. The defendant must be shown to have intentionally and seriously intruded. Proving the element of intent is crucial to a plaintiff’s claim.

A defendant can defeat a claim for intrusion/invasion of privacy if the plaintiff fails to show the intrusion is “highly offensive” to a reasonable person. (Some courts have ruled the intrusion must be “outrageous.”) When deciding whether an alleged intrusion is highly offensive, a court will consider 1), whether the plaintiff voluntarily entered a public realm; 2), the likelihood of serious emotional harm; 3), the alleged intruder’s motives and objectives; and 4), competing social norms. The latter category might include the public interest in exposing a serious crime.

Similarly, a defendant may be able to show the alleged intrusion was justified. For example, although a police search with a warrant is not always justified, one often is.

One issue arising more and more often is the intentional, non-consensual recording of cell phone conversations. Such a recording constitutes an intrusion. Defendants should understand such a recording is not only barred under our civil law, but may also trigger a criminal statutory authorization for money damages for invasion of privacy (via a civil action). Such an action can result in treble damages. (Cal. Penal Code Section 637.2)

A successful claim for intrusion can also yield emotional distress awards and punitive damages.