Intrusion law in California does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. California courts have adopted the elements of a claim for intrusion outlined in the Restatement (Second) of Torts. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463 (1986).
California courts have recognized a more expansive definition of intrusion, however, that includes situations involving the use of deception to obtain private information. For example, a court allowed an intrusion claim where the defendant misrepresented his relationship with the plaintiff to obtain private information from her foster mother. See Taus v. Loftus, 40 Cal.4th 683, 725 (2007) (available at the Supreme Court's website after entering the citation information).
California courts also recognize some additional limitations on your liability for intrusion. With respect to the first element of a claim -- intentional invasion into the private affairs of another -- California courts have upheld your right to photograph a public figure even if he or she is on private property so long as the subject is in full public view. Being in full public view eliminates any reasonable expectation of privacy that the subject may have.
In California, the plaintiff must prove that you intended to intrude on the seclusion of another. Marich v. MGM/UA Telecommunications, Inc., 113 Cal. App. 4th 415 (2003)(holding that you must desire, or intent, to cause the consequences of your actions or believe that the consequences are substantially likely to follow). In other words, if you were merely scanning the horizon with your binoculars and inadvertently saw into someone's bedroom, this mistaken intrusion into an area of seclusion of another will not likely give rise to liability.
Other Potential Bases for Liability
If you are photographing or recording someone in California, you should be aware that California also has an Anti-Paparazzi Statute: California Civil Code, §1708.8. The statute prohibits you from trespassing onto another person's land or property with the express intention of procuring any kind of visual image, including but not limited to photographs, visual images, sound recordings or other images of a person engaging in a personal or familial activity.
Under this statute, you can also be found liable for invasion of privacy for photographing or video taping a person in a manner that a reasonable person would find offensive regardless of whether you have physically approached the subject. This would include using high power lenses or ultra-sensitive microphones to gain access to a place where a person has a reasonable expectation of privacy. These would all be cases where, without actual physical trespass, you would not have been able to capture the image of the person without the use of special equipment.
You should be especially cautious about entering the private property of another when covering the actions of police or government officials (these are often called "ride-alongs"). Even with police or other government permission, you will likely still be liable for intrusion if you enter a private home without the consent of the homeowner herself. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1487-88 (1986).
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In California, you should also consider:
- That California recognizes "mistake of fact" as an affirmative defense to an intrusion claim. This means that if you made a genuine and reasonable reliance on a fact, later proven to be false, this may bar an intrusion claim against you. For example, if you mistakenly believed you have the permission of the subject you are photographing -- and your belief was reasonable -- you will not be liable for intrusion.
- You will not likely be held liable for intrusion if your actions are unintentional. You should be aware, however, that the majority of acts that give rise to an intrusion claim, such as taking pictures, video taping, recording, etc. are usually acts that you intend and the burden will be on you to prove otherwise.