And the World of Internet-Privacy Law Is a +.01% Better Place

As we saw last time, Tennessee has recognized “intrusion upon seclusion,” a flavor of invasion of privacy, since at least 2002, but until now, the cases had been so unusual that we didn’t know very much about the law’s parameters. This is important for internet law because state invasion-of-privacy laws, in particular “intrusion upon seclusion,” is one of the four (jerry-rigged) pillars of internet-privacy law, even where such law seems otherwise unrelated to the internet. Internet-privacy law is already enough of a mess to begin with, so any bit of clarity is nice. And we get some with Burnette v. Porter. We should send Judge Stafford a thank-you card for taking a bit of extra time to wrestle with the issue.

Thank You, Judge Stafford!

First, Judge Stafford establishes that the Reinstatement* really is the standard for Tennessee’s law of intrusion upon seclusion. Sure, Givens and Roberts, the two previous leading decisions on the issue, invoked the Restatement, but neither actually relied on the Restatement’s description of intrusion upon seclusion. (To be fair, Givens did rely on one of the Restatement’s comments, but it didn’t tie the comment back to any element of the Restatement’s treatment of the tort.)

* If you’re not a lawyer, you might be wondering what the Restatement is. It’s a series of books by the American Law Institute, an honest-to-Goodness public-spirited non-profit, for the purpose of condensing and rationalizing state common law from the morass of caselaw. Common law is made by judges; judge speak through appellate opinions; the force of legal opinions is limited to the specific issues at issue in that particular case; and you have to read and understand the entire opinion in order to synthesize the actual legal point you’re looking for, and even that might be a matter of debate. The Restatements try to distill (“codify”) clearly and succinctly the consensus legal points made by all of these appellate decisions. It doesn’t have the force of law–that’s why the Tennessee court had to “adopt” the Restatement–but it’s very influential. There are those who have said that the authors got ahead of themselves with the privacy torts, enshrining them in the Restatement of Torts while they were still relatively controversial.

If you read the Restatement’s treatment of intrusion upon seclusion in the last post, you won’t be very surprised by the elements of the tort as set out in Burnette:

  1. “An intentional intrusion, physical or otherwise,”
  2. “Upon the plaintiff’s solitude or seclusion or private affairs or concerns,”
  3. “Which would be highly offensive to a reasonable person.”

I think Judge Stafford might have added a fourth element: that injury was suffered as a result of the invasion of privacy. The Givens court seemed to be at pains to make causation-and-injury a separate element, so I think Burnette might have followed suit. I can’t think of any principled reason why this element should be limited to Givens’ unusual facts. Arguably, causation and injury are baked into the third element, but I’d prefer a bit of clarity here. Then again, neither causation nor damages were at issue in Burnette, and they’re not mentioned by the Restatement, so, you know, that common-law thing: Judge Stafford can’t answer questions that the parties didn’t present him with.

Second, Judge Stafford confirms that the intrusion need not be physical. This one we knew because neither Givens nor Roberts involved a physical intrusion, but it’s nice to have the confirmation. This means wrongfully accessing someone’s personal data stored on a remote server will constitute an intrusion.

Third, Judge Stafford explains what constitutes “seclusion.” A space or piece of information is “secluded” if (1) the plaintiff believed (subjectively) that she was entitled to privacy, and (2) a reasonable person would (objectively) agree with her. Since only an completely insane plaintiff would bring an action for invasion of privacy without believing subjectively that she was entitled to privacy, for all practical purposes, this test reduces down to the objective prong of the test.

Fourth, in what I believe is dicta*, Judge Stafford emphasized that personal offense is not enough. The test for whether an invasion of privacy is “highly offensive” is whether whether an ordinary person would be shocked by the intrusion to the point of distress. “[T]he standard is similar to that applicable to claims of intentional infliction of emotional distress.” This is pretty strong language.

* For non-lawyers, a statement in a decision is “dicta” if it doesn’t relate to one of the issues directly before the court. Dicta doesn’t have binding authority, but it can still be persuasive, depending on how well it’s written and reasoned. Having said that, there are good reasons why we distrust dicta.

Now, the “highly offensive” element was not at issue in Burnette, which is why I think this is probably dicta. However, it is consistent with previous Tennessee caselaw. In fact, in the Appellate Court’s unreported opinion in the Givens case (as opposed to the Supreme Court opinion we’ve been referencing so far), the court rejected the plaintiff’s damages claim because it was for “purely emotional damage.” It held that damages for purely emotional harm were recoverable, but only upon proof of (1) outrageous conduct and (2) “serious mental injury.” The court explained that these additional requirements were necessary to maintain the “balance between the interest a person has in being free from emotional disturbance and the interest in a judicial climate which does not become burdened with trivial lawsuits” (internal quotation marks omitted). The Givens Supreme Court opinion didn’t address this issue, so technically this holding remains undisturbed.

In a related context, the Tennessee Supreme Court noted, in Miller v. Willbanks, 8 S.W.3d 607 (Tenn. 1999), “Legitimate concerns of fraudulent and trivial claims are implicated when a plaintiff brings an action for a purely mental injury.” The court went on to hold that claims for intentional infliction of emotional distress (“IIED”)needed to prove both outrageous conduct and “serious mental injury,” while claims for negligent infliction of emotional distress, which logically can’t involve outrageous conduct, required “expert medical or scientific proof” to compensate for the lack of proof of outrageous conduct.

Be Careful Whom You Invite ‘Cross Your Threshold

Back to the Burnette case. Judge Stafford started his analysis by observing the common-sensical point that what is observed by invited guests is not “private” as to them. Therefore, what the Spy Kids observed while guests at the Woman’s home wasn’t private. Had they snuck off to rifle through files or rummage through medicine cabinets, then perhaps that’d be different.

But there remained the fact that the Spy Kids had gotten themselves invited under false pretenses. They weren’t really friends of the Teenagers. They were there to spy. Judge Stafford recognized that a fraudulently obtained invitation would defeat any protection afforded by the invitation. But he held that the Spy Kids’ behavior didn’t quite rise to the level of fraud. What would constitute fraud would be stealing an invitation, pretending you were someone you’re not–in other words, you’re not the person the property owner thought you were. Thus, while the Spy Kids’ friendship was insincere, the Woman knew whom she was inviting into her home. She just didn’t know their ulterior motive–but that’s just a risk we all have to take when we invite people over.

In reaching its decision, Judge Stafford relied mainly on criminal cases, in which police officers obtained access to private residences through trickery, e.g., posing as a potential buyer of a home. But, I think the decision is correct intuitively. Surely, people are invited into homes with ulterior purposes all the time. There’s a long tradition of “inviting yourself over” to someone’s house, not because you liked the person, but because you wanted to scope out “what she did with the kitchen” or just to find out about the newcomers. And what if, in the course of deciding the newcomers aren’t your kind of people, you tell your friend about the ugly sofa, tasteless painting, dirty dishes stacked in the sink, poorly kept backyard, or funny smell in the bathroom? Are those invasions of privacy, too?

The Limits of Even Good Written Opinions

From the perspective of those who live and make their living online, almost any opinion on privacy will be unsatisfactory because hardly any opinion can shed much light on the third element of the intrusion tort, “highly offensive to a reasonable person.” The objective “reasonable person” standard is a double-edged sword. On the one hand, the highly-sensitive and easily offended have no greater rights than anyone else, so we can assume a certain thickness of skin among our fellow denizens. On the other hand, we don’t usually know how a “reasonable person” would feel until a jury–juries are the ultimate proxies for the reasonable person–so we don’t quite know ahead of time how thick everyone’s skin is.

This is why Judge Stafford’s dicta about how the IIED standard should be used. That’s a very high standard, particularly if the “outrageous conduct” element is also imported. Further, we have a good deal of case law explaining what that standard is, and courts have taken to performing a kind of gatekeeper function at the early stages of litigation to winnow out claims that don’t even come close.

Alas, it’s dicta and, well, that common-law thing again. Baby steps, people, baby steps!

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.