American Bar Association
Forum on Communications Law
Recent Developments in the Law of Privacy
Frederick F. Mumm
In Shulman v. Group W1 and Sanders v. ABC,2 the California Supreme Court recently conducted an in-depth analysis of two of the four privacy torts: publication of private facts and intrusion on seclusion. The initial reaction to these decisions by the media bar was one of concern. The California Supreme Court appeared to be taking a somewhat broader view of the privacy torts than previous California authority. However, whether these decisions prove to be the start of a new trend toward broadening the privacy tort remains to be seen. The few California cases that have been decided since Shulman and Sanders do not appear eager to expand upon the reasoning in those opinions. The sole California Court of Appeal opinion thus far that attempted to broadly interpret Shulman and Sanders has been ordered depublished by the California Supreme Court.3 With the exception of an aberrant Ninth Circuit opinion,4 the early concerns that Shulman and Sanders would have a dramatic impact on investigative reporting appear unwarranted.
Shulman v. Group W
Since California is frequently a bellwether, practitioners throughout the country should take a close look at Shulman and Sanders and what has been happening in California since those opinions were reached. In Shulman, a cameraman for the syndicated program On Scene: Emergency Response accompanied a medical rescue helicopter on its mission to carry an accident victim to a nearby hospital.5 Nurse Laura Carnahan, who was in charge of the helicopter-based medical team, wore a remote microphone on her clothing. The plaintiffs, Ruth Shulman and her son, Wayne, had been passengers in an automobile that had gone over an embankment and landed on its roof.6 After arriving at the scene, the cameraman began recording the rescue efforts made to free Ruth Shulman from the overturned car. Meanwhile, Carnahan crawled under the car to ascertain the condition of her patient. Her remote microphone picked up her conversation with Shulman. The conversation revealed that she was somewhat disoriented, but neither Shulman nor the nurse revealed any substantive or private information about Shulman. In order to rescue her, workers used the "jaws of life" to tear off the side of the car. The cameraman obtained footage of Ruth Shulman's extraction from the automobile as well as her trip to the hospital in the helicopter.7 While in the helicopter, the nurse radioed ahead to the hospital and revealed Shulman's blood pressure and overall condition. The cameraman continued to record both audio and video in the helicopter.8
Although neither plaintiff was identified in the ensuing broadcast, they sued for invasion of privacy.9 The trial court granted the defendants 'motion' for summary judgment on the grounds that the broadcast was in the public interest. On appeal, the court of appeal affirmed dismissal of the claims arising from the activities that took place at the rescue site.10 The court, however, reversed with respect to claims for publication of private facts and intrusion on seclusion based on the taping that occurred inside the helicopter.11 According to the court, once the helicopter doors shut, the plaintiffs could reasonably expect some level of privacy. In the words of the court of appeal, "It is neither the custom nor the habit of our society that any member of the public at large or its media representatives may hitch a ride in an ambulance and ogle as paramedics care for an injured stranger."12
A clearly divided California Supreme Court took the opportunity to conduct a thorough review of the law with respect to claims for publication of private facts and intrusion on seclusion. The court affirmed in part and reversed in part, reinstating the intrusion claim both on the ground and in the helicopter and dismissing the publication of private facts claim altogether.13 With respect to the private facts claim, the court held that the truthful publication of newsworthy facts was privileged by the First Amendment. The court concluded that "a publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it."14 Although the court's analysis of the private facts claim may have cast doubt on the continued validity of such claims in all but the most extreme circumstances,15 its analysis of the intrusion tort appeared more inviting to plaintiffs.
Most experts would agree that allowing potential liability for riding along with a patient in a medical evacuation helicopter may not unduly burden the media. It is the court's analysis of the reporter's conduct at the accident scene itself that is of greater concern. Beginning with the standard definition of the intrusion on seclusion tort contained in the Restatement (Second) of Torts ("The action for intrusion has two elements: (1) intrusion into a private place, conversation, or matter, (2) in a manner highly offensive to a reasonable person"16), the court expounded on each of these two elements. Apparently rephrasing comment (b) in the Restatement,17 the court opined that to intrude into a "private place, conversation, or matter . . . the defendant [must penetrate] some zone of physical or sensory privacy surrounding, or [obtain] unwanted access to data about, the plaintiff . . . [where] the plaintiff [has] an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source."18 The limiting factor in this definition appears to be the objectively reasonable expectation of privacy. At first blush, the remaining concepts such as "sensory privacy" or "unwanted access to data" about the plaintiff appear to be broad enough to cover virtually anything. However, the court made clear that these concepts are not wholly elastic, finding that the filming at the accident scene could not constitute either a physical or sensory intrusion. The court noted that the "[p]laintiffs had no right of ownership or possession of the property where the rescue took place, nor any actual control of the premises."19 Therefore, at a minimum, a plaintiff must have some relationship to an area being filmed to claim that his or her physical or sensory privacy was invaded.
The court broke new ground in applying this standard. Focusing on Ruth Shulman's brief conversation with the nurse while both were inside the overturned vehicle, the court suggested that the presence of a microphone on the nurse's clothing may have allowed defendants to listen "in on conversations the parties could reasonably have expected to be private."20 Allowing that the cameraman did not intrude by recording what he saw and heard,21 the court pointed to the prohibition in California Penal Code section 632 on recording confidential communications without the consent of the parties as supporting the plaintiffs' claim.22 This observation would not have been remarkable absent the fact that the plaintiffs' request to amend their complaint to add a cause of action for violation of section 632 had been denied and that denial was final. Acknowledging that the plaintiffs could not now assert a section 632 claim,23 the court nonetheless stated that the claim "is comprehended in the complaint's claim of intrusion in the substantive law relating to that claim."24
The concept of allowing a common law claim to be based on a violation of section 632 is new and, as shown below, questionable. Also somewhat problematical is the court's propagation of language from one of its prior opinions, Ribas v. Clark,25 in describing the "reasonable expectation" regarding the recording of confidential conversations. The Shulman court quoted from its decision in Ribas as follows:
While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of the conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device. . . . [S]uch secret monitoring denies the speaker an important aspect of privacy of communication-the right to control the nature and extent of the firsthand dissemination of his statements.26
Ribas concerned a claim under Penal Code section 631 for surreptitiously intercepting a telephone call.27 Significantly, section 631 does not limit claims to interception of "confidential communications."28 Any surreptitious interception of a telephone conversation is actionable. In the context of recording a telephone call, the legislature certainly had made the
distinction described in Ribas.29 However, surreptitious recording of conversations that are not "confidential" are not actionable under section 632.30 The right to control firsthand dissemination of statements only applies to confidential communications under section 632. Hence, the Ribas quote expresses a principle that is beyond the ambit of section 632.
Whether the language quoted from Ribas is applicable to a common law invasion of privacy claim is more complicated. Presumably, a defective claim under section 632 (e.g., the surreptitious recording of a nonconfidential communication), at least prior to Shulman, would not have triggered any liability. At the time section 632 was enacted, it was legal for one party to a conversation to record surreptitiously a conversation, confidential or not, with another party.31 Section 632 then clearly was not a statutory adoption of preexisting common law. Rather, by enacting section 632 the legislature created new rights, i.e., the right to be free from surreptitious recording of confidential communications by a party to the conversation.32
New Right Exclusive Remedy
Under the "new right exclusive remedy" rule, when a new right along with an adequate remedy is created by statute, the statutory remedy is the only remedy available for violation of the new right.33 Since surreptitious taping of a conversation by a party to the conversation was permitted prior to the enactment of section 632,34 the recent extension of the common law intrusion tort to cover this activity appears questionable. Indeed, the policy underlying the so-called right to control firsthand dissemination of one's comments is difficult to discern. The practical effect of surreptitious recording, at least in the newsgathering context, is to document what was actually said. Use of hidden cameras and microphones by the media has been an extremely effective deterrent to groundless defamation actions. Because of the ease with which defamation claims may be attacked with the indisputable evidence produced by the tape, most cases arising from newsgathering activities conspicuously exclude claims for defamation. Much of the time, news reports using hidden cameras and microphones expose consumer fraud, unsafe or unsanitary conditions, or questionable business practices. In the long run, the public is ill served by ensuring "plausible deniability" by those engaging in these practices.
Interestingly, at the same time the court suggested that a violation of section 632 could also be actionable as an intrusion on seclusion, the court indicated that activity expressly excluded from section 632's coverage also could be actionable as an intrusion on seclusion. In this regard, the court seemed to draw a distinction between an expectation that people involved in the rescue effort could overhear Shulman's conversations and an expectation that passersby could overhear such conversations. As the court stated:
Ruth's claim, of course, does not require her to prove a statutory violation, only to prove that she had an objectively reasonable expectation of privacy in her conversations. . . . [W]hether anyone present (other than [the cameraman]) was a mere observer, uninvolved in the rescue effort, is unclear from the summary judgment record.35
The clear implication of this statement is that whether Shulman's conversations could be overheard by people involved in the rescue effort would be irrelevant. Thus, under the California Supreme Court's formulation, the fact that a conversation can be overheard may not be sufficient to insulate from liability its surreptitious recording.36
Primarily based on an understanding that section 632 covered the field as to liability for electronically intercepted communications, California practitioners had long looked to that statute as a safe harbor in advising their clients on the use of hidden cameras and microphones in pursuit of the news. In light of Shulman, it now would be dangerous for practitioners to believe that compliance with section 632 would protect their clients from liability.
The court seemed more accommodating of the media with respect to the second element, whether the intrusion was conducted in a manner "highly offensive" to a reasonable person. Here, the plurality opinion made clear that the motives or justification of the intruder are "particularly important" when the intrusion occurs in an attempt to gather the news. As stated by the court: "The constitutional protection of the press does reflect the strong societal interest in effective and complete reporting of events, an interest that may-as a matter of tort law-justify an intrusion that would otherwise be considered offensive."37
The court went on to explain that "information collecting techniques that may be highly offensive when done for socially unprotected reasons- for purposes for harassment, blackmail or prurient curiosity, for example-may not be offensive to a reasonable person when employed by a journalist in pursuit of a socially or politically important story." 38
Applying this framework, the court found that nonetheless triable issues of fact existed as to whether, despite the newsgathering motive, the defendant's conduct had been highly offensive. The concurring and dissenting opinion by Justice Chin (joined by Justice Moss) maintained that under the facts of the case, the newsgathering motive should have established as a matter of law that the conduct was not highly offensive. As explained by Justice Chin: "Recording the innocuous inoffensive conversations that occurred between Ruth and the nurse assisting her [citation omitted] and filming the seemingly routine, though certainly newsworthy, helicopter ride [citation omitted] may have technically invaded plaintiffs' private 'space,' but in my view, no 'highly offensive' invasion of their privacy occurred."39
Although the plurality opinion makes clear that the newsgathering motive is an important factor in deciding whether particular conduct is highly offensive, the court was unable to decide as a matter of law that the conduct in Shulman was not highly offensive. Even though, as pointed out by Justice Chin,40 the conversation could hardly have been more benign, because the conversation was with a health care provider in the midst of providing services, the court was unwilling to dismiss the claim. The overall tenor of the analysis, however, seems deferential of newsgathering in general. Certainly, language in the opinion will be used by media defendants in urging that the newsgathering motive in a particular case made the conduct not highly offensive as a matter of law. As acknowledged by the court, "[t]he media enjoys some degree of favorable treatment under the California intrusion tort, as a reporter's motive to discover socially important information may reduce the offensiveness of the intrusion."41
Medical Laboratory Management Consultants v. ABC
The first case to apply Shulman followed precisely this line of reasoning in finding the media conduct in that case to be not highly offensive as a matter of law. In Medical Laboratory Management Consultants v. American Broadcasting Companies,42 a federal district court in Arizona granted summary judgment dismissing an intrusion claim after applying the Shulman analysis. In Medical Laboratory, an ABC employee, posing as a medical laboratory technologist, met with the plaintiff, an owner of a medical pap smear laboratory, to discuss details of the costs involved in running such a laboratory.43 The plaintiff apparently thought that the laboratory technologist was a possible source of business for his laboratory.44 The meeting was also attended by an undercover camera specialist posing as a computer expert.45 The meeting took place in a conference room adjoining the reception area of the laboratory.46 In addition to meeting with the undercover reporters, the plaintiff also took the ABC employees on a tour of the laboratory.47
Footage of the interview was broadcast on ABC's television program PrimeTime Live in a story about frequent errors in pap smear testing at medical laboratories.48 In the program, entitled "Rush to Read ," ABC revealed that it had sent pretested pap smear slides to the medical laboratory for testing and that the medical laboratory mistakenly failed to identify cervical cancer on several of the slides.49
The plaintiffs brought a myriad of claims, including a claim for intrusion on seclusion.50 Quoting extensively from the Shulman opinion, the court concluded that the plaintiffs had no reasonable expectation of privacy in their meeting with defendants in the plaintiffs' workplace51 and that the defendants' conduct was not highly offensive.52 With respect to this latter finding, the court relied on defendants' newsgathering motive:
It is undisputed that defendants were reporting on potential laboratory errors in testing of pap smears, information that was clearly in the public interest because the results of the tests involve vital health issues. . . . As part of their newsgathering activities, they conducted a hidden camera interview with an owner of a laboratory that profits from conducting such tests. They did not jeopardize the safety of anyone, nor did they intrude on [plaintiff's] home or aspects of his private life. While [plaintiff] may have preferred that the interview not be broadcast, the intrusion was not highly offensive as a matter of law.53
Wilkins v. NBC
The first application of the Shulman intrusion analysis in a California Court of Appeal decision quickly followed. In Wilkins v. National Broadcasting Company,54 the California Court of Appeal affirmed summary judgment on a complaint that included, inter alia, an intrusion claim against the media. In Wilkins, NBC news conducted an investigation into the then-growing practice of charging for services on toll-free 800 numbers. The plaintiff, SimTel Communications, leased and programmed 800 and 900 lines and sold them to investors.55 Producers posing as potential investors met with plaintiffs Wilkins and Scott at a Malibu restaurant. The producers recorded the meeting with hidden cameras and microphones. Portions of the undercover video were used in the ensuing Dateline report, "Hardcore Hustle."56 The plaintiffs responded with a lawsuit alleging multiple claims based on the use of hidden cameras and on the contents of the broadcast.57
Relying primarily on Shulman, the court held that plaintiffs' intrusion on seclusion claim failed on both prongs. Since the meeting was conducted on the outdoor patio of a public restaurant, plaintiffs spoke freely, even while waiters attended the table, and the conversation dealt with business, not personal, matters, the court found there was no intrusion into a private place, conversation, or matter as a matter of law.58 For the same reasons, the court also found that the conduct of the NBC producers was not highly offensive as a matter of law.59
Significantly, the court distinguished Dietemann v. Time, Inc.,60 on the grounds that the alleged intrusion in that case took place in the plaintiff's home, as opposed to a workplace or public area.61 These precise grounds had been relied upon to distinguish Dietemann in Medical Laboratory Management Consultants and in Desnick v. American Broadcasting Companies.62
Sanders v. ABC
Less than a year after deciding Shulman, the California Supreme Court once again examined the tort of intrusion on seclusion. This time the court examined the propriety of the court of appeal's reversal of a jury verdict in favor of the plaintiff against ABC in Sanders v. American Broadcasting Companies.63 In Sanders, an undercover news reporter for the ABC news program PrimeTime Live obtained employment as a psychic with the Psychic Marketing Group.64 Psychic Marketing Group ran boiler room operations that dispensed psychic readings over the telephone for a per-minute fee. The reporter, after admitting that she had no psychic experience or abilities, was hired as a psychic. While so employed, she secretly recorded conversations with coemployees.65 Two of the individual employees who had been recorded sued.66 At trial, the jury found that the plaintiff had a reasonable expectation that his conversation could be overheard and found for ABC on plaintiff's claim for violation of Penal Code section 632.67 The jury also found that the plaintiff had a reasonable expectation that his conversations would not be recorded and the recording was highly offensive.68 The jury awarded the plaintiff compensatory and punitive damages totaling over $600,000 on the plaintiff's claim for intrusion on seclusion.69 On appeal, the court of appeal reversed the judgment reasoning that the finding on the section 632 claim necessarily implied that plaintiff did not have a reasonable expectation of privacy and, without a reasonable expectation of privacy, the cause of action for intrusion was without merit.70
The California Supreme Court accepted review and focused its analysis primarily on only the first element of the intrusion tort, to wit, whether the defendant penetrated some zone of physical or sensory privacy surrounding or obtained unwanted access to data about the plaintiff.71 Picking up on the suggestion in Shulman that an expectation of privacy might depend in part on the identity of any third parties who could overhear the conversation,72 the court held that the fact that the plaintiff had no reasonable expectation of confidentiality vis-à-vis his fellow workers did not preclude an expectation of confidentiality vis-à-vis a colleague who is also surreptitiously working for the media.73 Whereas in Shulman the court took pains to explain that the media enjoyed favorable treatment in determining whether the newsgathering motive rendered what could otherwise be considered highly offensive conduct insulated from liability,74 in Sanders the court held that the media are at a particular disadvantage in applying the first element of the tort. Specifically, the court held that the question was not whether the plaintiff had a reasonable expectation of confidentiality in the communication, but whether the plaintiff had a reasonable expectation that the conversation would not be subject to covert videotaping by a member of the media.75 Thus activity that would not otherwise be actionable may become actionable if undertaken by the media. The court pointedly did not rule on whether the newsgathering motive rendered the conduct not highly offensive.
Marich v. QRZ Media
Less than two weeks after the California Supreme Court handed down its decision in Sanders, a California Court of Appeal relied on both Shulman and Sanders to reverse the dismissal of claims in another privacy case. In Marich v. QRZ Media76 a video crew working for the television show L.A.P.D.: Life on the Beat accompanied police entering an apartment, apparently with the permission of the apartment manager, of a drug overdose victim.77 The apartment manager had called the police after discovering the decedent's body on the floor of his apartment.78 When the police called the decedent's parents to inform them of their son's death, the video crew recorded the policeman making the telephone call.79 Some unintelligible sound could be heard from the other end of the line.80
The parents sued for, among other things, violation of Penal Code section 632 and intrusion on seclusion.81 While acknowledging that the plaintiffs would have no expectation of confidentiality in the contents of their conversations with the police, the court reasoned that the plaintiffs could reasonably expect that no third person would record the conversation for use "on a commercial television program."82 The court then reinstated the claims both for intrusion on seclusion and violation of section 632.83
A dissenting opinion noted that the zone of privacy that is protected by the intrusion of seclusion tort is the plaintiff's portion of the conversa-tion.84 Perhaps signaling that the court of appeal had misread both Shulman and Sanders, the California Supreme Court ordered that the opinion be depublished.85
Sussman v. ABC
The Ninth Circuit Court of Appeals soon stepped into the fray. In Sussman v. American Broadcasting Companies,86 coemployees of Sanders also sued ABC for the same activity that gave rise to Sanders v. American Broadcasting Companies.87 In Sussman, however, the plaintiffs sought to impose liability on ABC for violation of the federal wiretapping statute.88 Under the federal law, one party's consent to the recording is sufficient to avoid the prohibition. An exception to the consent exception, however, exists if the purpose of the recording is to commit "any criminal or tortious act in violation of the Constitution or laws of the United States or of any state."89 The plaintiffs claimed that under Shulman, the taping could constitute an intrusion on seclusion and thereby trigger the federal statute.90 In an opinion written by Judge Kozinski, the Ninth Circuit rejected the plaintiff's contention holding:
Under Section 2511, "the focus is not upon whether the interception itself violated another law; it is upon whether the purpose for the interception, its intended use, was criminal or tortious." [Citation omitted.] Where the taping is legal, but is done for the purpose of facilitating some further impropriety, such as blackmail, Section 2511 applies. Where the purpose is not illegal or tortious, but the means are, the victims must seek redress elsewhere.91
The Ninth Circuit thereby effectively slammed the door on an attempt to create a federal claim based on the intrusion tort.
Flanagan v. Flanagan
The California Court of Appeal stepped back into the scene in Flanagan v. Flanagan,92 decided days before the end of 1999. Although Flanagan is not a media case, the court's analysis of a section 632 claim is significant. The facts in Flanagan seem to be right out of a Sunday Night Movie of the Week. After being diagnosed with prostate cancer, John Flanagan began receiving injections of Lupron to inhibit the proliferation of cancer cells.93 His wife, Honorine, began administering the injections after a time.94
Approximately two years later, John advised Honorine and his attorneys that he was considering changing his estate plan to leave one-third of his estate to his two children by a former marriage, rather than leaving his entire estate to Honorine as he previously had intended.95 However, John did not immediately change his estate plan.
In an effort to expedite John's death so she could take the entire estate, Honorine began injecting John with water instead of Lupron.96 She also installed a recording device on the telephone to learn if John became suspicious or made any attempt to change his estate plan.97 In this manner, she taped a number of telephone conversations between John and his son, Michael.98 Several months later, John and Michael learned of the plot and John's physician began to administer the Lupron injections. A year later John died of a heart attack, never having changed his estate plan. Honorine inherited John's entire multimillion-dollar estate.
Michael sued Honorine for violation of section 632.99 The jury found that Honorine had electronically recorded twenty-four confidential communications and awarded $5,000 for each recording, totaling $120,000. The jury also awarded $1,200,000 in punitive damages. The trial court struck the punitive damages and reduced the statutory penalty to $5,000.100
The court of appeal examined carefully the question of what constitutes a confidential communication for purposes of section 632. It derived the following definition from the statutory language: "A communication is confidential if (1) it reasonably appears that at least one of the parties desires it to be exclusive to the parties; and (2) the desire for exclusivity is objectively reasonable under the circumstances."101
The court noted that Shulman had acknowledged a split of authority in California on the first part of the definition:
Recently, the Supreme Court noted a conflict in the Court of Appeal cases and the fact that it had not yet decided the issue. "Neither in Ribas v. Clark [citation omitted] nor in any other case have we had occasion to decide whether a communication may be deemed confidential under Penal Code Section 632, subdivision (c) when a party reasonably expects and desires that the conversation itself will not be directly overheard by a nonparticipant or recorded by any person, participant or nonparticipant, but does not reasonably expect that the contents of the communication will remain confidential to the parties. (Compare Coulter v. Bank of America (1994) 28 Cal. App. 4th 923, 929, 33 Cal. Rptr. 2d 766 and Frio v. Superior Court (1988) 203 Cal. App. 3d 1480, 1488-90, 250 Cal. Rptr. 819 [both holding [Penal Code] Section 632 requires only that a party to the conversation reasonably expects it to be private from recording or eavesdropping] with O'Laskey v. Sortino (1990) 224 Cal. App. 3d 241, 248, 273 Cal. Rptr. 674 [referring to expectation the conversation would not be "divulged" to third party] and Deteresa v. America Broadcasting Companies, Inc. (9th Cir. 1997) 121 F.3d 460, 463-64 [reading O'Laskey v. Sortino, supra, as requiring expectation of secrecy of contents and predicting this Court would adopt such interpretation of [Penal Code] Section 632]. [Citation omitted.])102
The court then referred to the statutory analysis performed by the Ninth Circuit in Deteresa, which it found to be persuasive:
In construing a statute, the California Supreme Court "turns first," as it should, "to the words themselves for the answer." [Citation.] Where the plain meaning of the statute is clear, "courts will not interpret away clear language in favor of an ambiguity that does not exist." [Citations.] . . . The first clause of [Penal Code] section 632[, sudivision] (c) explains that "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto. . . ." [Citation.] If, therefore, neither party reasonably expects the communication to be confined to the parties, it is not confidential. [¶] The second clause of [Penal Code] section 632 [, subdivision] (c) goes on specifically to exclude communications "made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." [Citation.] Thus, where someone reasonably expects that the communication may be overheard, the communication is not confidential. . . . The test is whether one of the parties has an objectively reasonable expectation under the circumstances that the conversation will not be divulged to anyone else.103
Based on this definition, the court looked to the content of the conversations to ascertain whether the parties had an objectively reasonable expectation of exclusivity. Since there was no evidence of the contents of seventeen of the conversations, the court concluded that Michael had failed to prove that the conversations were confidential. As to five of the conversations whose contents had been admitted into evidence, the court found that they were not confidential. Finally, the court found that two of the conversations supported a finding of confidentiality.104
The court then found that Michael was entitled to the $5,000 statutory penalty for each of these two violations. Finally, applying the "new right exclusive remedy" rule, the court found that the legislature had created a new right by enacting section 632 and that the remedy provided by the legislature was adequate and, therefore exclusive.105 The court therefor affirmed the striking of the punitive damages. Perhaps in order to resolve the conflict over the definition of "confidential," the California Supreme Court has accepted review of this decision.
Alpha Therapeutic Corp. v. Nippon Hoso Koikai
The day after Flanagan was decided, the Ninth Circuit Court filed its opinion in Alpha Therapeutic Corporation v. Nippon Hoso Koikai.106 The fact situation in Alpha Therapeutic was nearly identical to that of Deteresa. In Alpha Therapeutic, Japan's public broadcasting corporation, NHK, broadcast a report on plaintiffs, a California corporation that produces blood plasma derivatives and its medical director. The report stated that the plaintiffs "knowingly shipped blood products to Japan that were contaminated with AIDS virus, falsified documents about its investigation of a blood donor, and falsely reported information about the donor to the United States Food and Drug Administration."107 As part of its investigation to the story, NHK sent a reporter to California who interviewed the medical director at his home. The reporter appeared at the medical director's front door carrying a hidden microphone. A van in the street contained a hidden camera. When the medical director came out of his house, the reporter interviewed him.108
The plaintiff sued for slander, conversion, trade libel, and invasion of privacy. Citing both Shulman and Sanders, the Ninth Circuit reversed dismissal of the intrusion on seclusion claim, noting:
"Even assuming that [plaintiff medical director] knew he was speaking with a reporter, he can still state a claim for invasion of privacy because a person may reasonably expect privacy against the electronic recording of a communication, even though he or she had no reasonable expectation of the confidentially of the communications contents." [Citing Sanders.] As to whether or not the intrusion was "highly offensive," there is no bright line rule; "each case must be taken on its facts." [Citing Shulman.] Consequently, we conclude that [plaintiff medical director] did state a claim for invasion of privacy, and we reverse the Court's dismissal of this claim.109
It would appear that the Ninth Circuit seriously misread both Sanders and Shulman. Sanders explained an expectation of privacy is not binary, i.e., all or nothing. Accordingly, although Sanders could not expect the conversations with coworkers would not be shared or overheard by other coworkers, Sanders could expect that such conversations would not be recorded by a reporter. However, in Alpha Therapeutic, the court assumed the plaintiff knew he was speaking with a reporter. For the same reason the Deteresea affirmed dismissal of the plaintiff's claim for intrusion in that case, the dismissal of the privacy claim in Alpha Therapeutic should have been affirmed.
Moreover, the court ignored the importance the Shulman court gave to the newsgathering motive in assessing whether conduct is highly offensive for purposes of an intrusion claim. Although in Shulman the court could not find that the conduct was not highly offensive as a matter of law because the intercepted conversation was between a patient and a medical rescue worker, even there the question was considered close.110
Salazar v. Golden State Warriors
Another recent case that is noteworthy for its reliance on Shulman and Sanders in dismissing an intrusion claim is Salazar v. Golden State Warriors.111 After receiving a tip that the equipment manager for the Golden State Warriors was using drugs, the Warriors hired a private investigator to observe the plaintiff. Through the use of high technology surveillance equipment, including night-vision infrared high-powered scoping devices,112 the investigator videotaped the plaintiff allegedly snorting cocaine in his vehicle at a wedding reception. Among the claims filed by the plaintiff was a claim for intrusion based on the videotaping.
The court found there had been no intrusion, since "there is no intrusion into a private place when a plaintiff has merely been observed, or even photographed or recorded, in a public place."113 The court rejected plaintiff's claim that the dark and isolated parking lot should be considered private. Relying on Shulman, the court noted that there can be "no invasion of privacy where plaintiff had no right of ownership, possession, or actual control of the premises where the incident took place."114
Looking at the second element of the tort, whether the intrusion was highly offensive, the court first cited Miller v. National Broadcasting Company115 and Sacramento County Deputy Sheriff's Assoc. v. County of Sacramento116 for the proposition that it is up to the court, not a jury, to make a preliminary determination of whether there is offensive conduct. Based on the Shulman analysis, the court examined defendant's motive to see if it justified the activity. Finding a legitimate work-related motive for the investigation (i.e., whether plaintiff was using drugs), the court held that plaintiff did not allege any facts that would constitute a highly offensive intrusion.117
Impact of Shulman and Sanders?
Although the decisions in Shulman and Sanders were both widely viewed as greatly expanding privacy rights at the expense of the media, it is not clear at this juncture that that will be the case. The depublication of Marich v. QRZ Media suggests that the California Supreme Court does not intend these opinions to be construed too broadly. However, by accepting review in Flanagan, the court has indicated that it is not yet finished with its work in the privacy area.
Relying on the analysis rather than the outcome of Shulman and Sanders, federal district courts and California appellate courts have found intrusion claims to be without merit as a matter of law. The anomaly is the Ninth Circuit opinion in Alpha Therapeutic. Pending further word from the Supreme Court, a body of law seems to be developing that will be useful in refining guidelines for investigative journalists. Stay tuned.
1. 18 Cal. 4th 200 (Cal. 1998).
2. 20 Cal. 4th 907 (Cal. 1999).
3. Marich v. QRZ Media, Inc., 86 Cal. Rptr. 2d 406, rev. denied and ordered not published, 86 Cal. Rptr. 2d 406, n.* (Cal. Ct. App. 1999).
4. Alpha Therapeutic Corp. v. Nippon Hoso Kyoka, 199 F.3d 1078 (9th Cir. 1999).
5. Shulman, 18 Cal. 4th at 210.
7. Id. at 210-11.
9. Id. at 212.
10. Id. at 213.
12. Id. at 233 (quoting Shulman v. Group W, 51 Cal. App. 4th 850 (Cal. Ct. App. 1996)).
13. Id. at 242-43.
14. Id. at 225.
15. See id. at 214-30 and concurring opinion of J. Kennard at 243-47.
16. Id. at 231.
17. Comment (b) to the Restatement (Second) of Torts states:
The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aides, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.
18. Shulman,18 Cal. 4th at 232.
20. Id. at 233.
22. Id. at 234.
23. Id. at 236 n.16.
25. 38 Cal. 3d 355 (Cal. 1985).
26. Shulman, 18 Cal. 4th at 235.
27. The defendant had listened in on a telephone conversation using an extension telephone. Ribas, 38 Cal. 3d at 358.
28. California Penal Code § 631 provides in part:
Any person who . . . intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, . . . or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line or cable, or is being sent from, or received at any place within this state; . . . is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison, or by both a fine and imprisonment in the county jail or in the state prison. . . .
29. The language quoted from Ribas was taken from an earlier court of appeal opinion that analyzed whether section 632 applied to a participant who recorded his own conversations. See Warten v. Kahn , 99 Cal. App. 3d 805, 813 (1979).
30. Deteresea v. American Broadcasting Co. , 121 F.3d 460, 463-64 (9th Cir. 1977); but see Coulter v. Bank of America , 28 Cal. App. 4th 923, 929 (Cal. Ct. App. 1994) (holding that expectation that conversation not being recorded is sufficient to make communication confidential for purposes of the statute) and Frio v. Superior Court , 203 Cal. App. 3d 1480, 1488-90 (Cal. Ct. App. 1988) (same).
31. The author of Penal Code § 632, Assembly Speaker Jesse Unruh, in the digest of Assembly Bill 860 explained : "Under existing law, Penal Code § 653(j), confidential conversations may be eaves-dropped upon or recorded if only one party to the conversation gives his consent."
32. See Flanagan v. Flanagan, 72 Cal. App. 4th 122, 138 (Cal. Ct. App. 1999) ("The Invasion of Privacy Act is not simply a declaration of the preexisting common law doctrine of invasion of privacy by intrusion."), rev. granted, 94 Cal. Rptr. 2d 345 (Cal. 2000).
33. Orloff v. Los Angeles Turf Club, Inc., 30 Cal. 2d 110, 112 (1947); accord Rojo v. Kliger, 52 Cal. 3d 65, 79 (1990).
34. See Cal. Penal Code § 631 .
35. Pursuant to Penal Code § 632, so long as parties to the communication may reasonably expect that the communication may be overheard "there is no violation." Shulman, 13 Cal. 4th at 235.
36. Approximately one year later, in Sanders v. American Broadcasting Co., the court left no doubt that a reasonable expectation that a conversation could be overheard did not prevent liability for intrusion based on secretly taping the conversation.
37. Shulman, 18 Cal. 4th at 236.
38. Id. at 237.
39. Id. at 248.
41. Id. at 239.
42. 30 F. Supp. 2d 1182 (D. Ariz. 1998).
43. Medical Lab., 30 F. Supp. 2d at 1185.
48. Id. at 1186.
51. Id. at 1189.
52. Id. at 1190-91.
53. Id. at 1190-91 (footnote omitted).
54. 71 Cal. App. 4th 1066 (1999).
55. Wilkens, 71 Cal. App. 4th at 1071.
56. Id. at 1072.
57. Plaintiffs alleged causes of action for (1) physical intrusion on solitude or into private affairs (intrusion); (2) fraud and conspiracy to commit fraud; (3) conspiracy to commit and intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) unlawful eavesdropping on or recording of confidential communications (Cal. Penal Code §§ 632(a), 634, 637.2); (6) public disclosure of private facts; (7) violation of right of privacy (Cal. Const., art. I, § 1); (8) trade libel and conspiracy to commit the same; (9) conspiracy to interfere with and interference with prospective economic advantage and contractual relations; (10) unfair business practices; (11) conspiracy to commit and defamation; and (12) false light and intention to commit false light. Id. at 1073.
58. Id. at 1078.
59. Id. at 1079.
60. 449 F.2d 245 (9th Cir. 1971).
61. In Dietemann, Time was found liable for invasion of privacy after two Life reporters posing as patients gained entry to the home of a quack doctor and secretly recorded and photographed the plaintiff during his "examination" of one of them. Dietemann , 449 F.2d at 246.
62. 44 F.3d 1345, 1353 (7th Cir. 1995).
63. 20 Cal. 4th 907 (Cal. 1999).
64. Sanders, 20 Cal. 4th at 910.
66. One of the two plaintiffs died between the time the verdict was rendered and judgment entered. The appeal proceeded as to the surviving plaintiff.
67. Id. at 913.
71. Id. at 914-23.
72. Specifically, in Shulman the court implied that whether the plaintiff could have a reasonable expectation of confidentiality with respect to her conversations with a microphone-toting rescue nurse could depend on whether the conversations could reasonably be overheard by passersby or only by others involved in the rescue effort. Shulman, 18 Cal. 4th at 232, 235.
73. Sanders, 20 Cal. 4th at 923.
74. Shulman, 18 Cal. 4th at 236-37.
75. Sanders, 20 Cal. 4th at 923.
76. 86 Cal. Rptr. 2d 406 (1999), ordered not published, 86 Cal. Rptr. 2d 406, n* (1999).
77. Marich, 86 Cal. Rptr. 2d at 412.
79. Id. at 413.
81. Id. at 410.
82. Id. at 419.
83. Id. at 419-20.
84. Id. at 422.
85. 86 Cal. Rptr. 2d 406, n* (1999).
86. 186 F.3d 1200 (9th Cir. 1999).
87. Sussman, 186 F.3d at 1201.
88. 18 U.S.C. § 2511 provides in part:
It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such an interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
90. Sussman, 186 F.3d at 1202.
91. Id. at 1202-03.
92. 91 Cal. Rptr. 2d 422 (1999), review granted and opinion superseded by, Flanagan v. Flanagan, 996 P.2d 27, 94 Cal. Rptr. 2d 375 (Cal. Mar. 22, 2000) (No. S085594).
93. Flanagan, 91 Cal. Rptr. 2d at 424.
97. Id. at 424-25.
98. Id. at 425.
99. Honorine instituted the action against Michael and his sister for slander, invasion of privacy, and intentional and negligent infliction of emotional distress. Michael cross-complained for violation of California Penal Code § 632 and intentional infliction of emotional distress. The jury returned a verdict in favor of Michael and his sister on Honorine's complaint. Id. at 424.
101. Id. at 426.
102. Id. at 427.
103. Id. at 428 (quoting Deteresa, 121 F.3d at 464-65.)
104. With respect to these two conversations, the court stated:
These transcripts established that the conversations concerned the retaining of a divorce attorney for John and investigations into community property assets which Honorine may have misappropriated. The content of these conversations together with the relationship of the parties and other surrounding circumstances clearly support a finding of confidentiality.
Id. at 429.
105. Id. at 432-33.
106. 199 F.3d 1078 (9th Cir. 1999).
107. Id. at 1082.
108. Id. at 1083.
109. Id. at 1089.
110. See dissenting opinion of Justice Chin in Shulman, 18 Cal. 4th at 247-49.
111. 2000 WL 246586 (N.D. Cal. 2000).
112. Although the investigator also videotaped plaintiff leaving his home, plaintiff conceded that he had not been videotaped while inside his home. Slip op. at 1.
113. Salazar, slip op. at 1 (quoting Sanders, 20 Cal. 4th at 914).
114. Slip op. at 2.
115. 187 Cal. App. 3d 1463 (1986).
116. 51 Cal. App. 4th 1468 (1996).
117. Salazar, slip op. at 4.
Frederick F. Mumm is Of Counsel with the firm of White O'Connor Curry Gatti & Avanzado LLP in Los Angeles and represented the defendants in Shulman v. Group W discussed in this article.