Legal Commentary

No ?Intrusion Upon Seclusion? Tort When Person is Videotaped at a Publicly Visible Religious Service

By Eugene Volokh

From Tagouma v. Investigative Consultant Servs., Inc.:

On April 8, 2004, [Appellant, Ahmed, Tagouma] fell at work while employed at Arnold Industries. He suffered an acute fracture of his right hand. [Appellant] was later diagnosed with Reflex Sympathetic Dystrophy Syndrome (RSD). [Appellant] sought workers? compensation benefits and Arnold Logistics contested his claim. While the claim was pending, the workers? compensation carrier, Sentry Insurance, retained [Appellee, Investigative Consultant Services, Inc.,] to perform surveillance on [Appellant]. [Michael S. Zeigler], an investigator with ICS, was assigned to conduct the surveillance.

[Appellant], currently 53 years old, is a[ ] Moroccan immigrant and a Muslim who worshipped at the Al-Hikmeh Institute, which is housed on the first floor of [the] Islamic Center of PA, located at 4704 Carlisle Pike, Mechanicsburg....

According to [ ] Zeigler, on April 7, 2005, at approximately 9:10 p.m., he parked in front of the three-store strip mall in a public lot, though at the time he parked there, all three businesses were closed. Zeigler observed [Appellant] from across Carlisle Pike as [Appellant] stood inside in the Al-Hikmeh portion [of] The Islamic Center near a window on the building?s north side. Zeigler was between 79 and 80 yards away from The Islamic Center windows. [ ] Zeigler videotaped [Appellant] for 45 minutes with a Sony 8 mm video camera and used the camera?s zoom feature.

Zeigler testified that at first he was unsure what the people inside The Islamic Center were doing, though after a while, he began to think ?they might be praying.? He believed that since Plaintiff was in plain view, he could videotape him. He was trained to videotape subjects so long as they were ?in public? or ?in plain view,? even if inside a public building. The videotape was subsequently shown to a workers? compensation judge.

[Appellant] was not aware that Zeigler was conducting surveillance of him or videotaping him until a later time. He testified he was standing six to eight feet from the window through which he was recorded and that the Al-Hikmeh Institute was lit inside. He was standing up and praying in the video; his prayer consisted of standing up, kneeling and placing his head upon the floor. [Appellant] testified that ?when I go in front of God, that?s my own privacy, my own prayer between me and God, my sacred place, my sacred time, and nobody has the right to interfere or invade that time with God?with me and God.? ...

On April 6, 2006, Appellant filed a complaint against Appellees asserting abuse of legal process and invasion of privacy, more specifically, intrusion on seclusion.

The court held, I think correctly, that the defendant?s conduct wasn?t tortious:

In this case, it is undisputed that Zeigler was standing at a lawful vantage point in the parking lot across the street from the Islamic Center. His use of a zoom lens, similar to using binoculars, was not unreasonable. Moreover, the Islamic Center was not completely obstructed from the view from the street. Zeiger could have just as easily walked down the public driveway and taken photos from directly outside the window. Further, as the trial court aptly noted:

While some individuals might expect a certain level of privacy in a house of worship, the specific intrusion here concerned observation of [Appellant] that any member of the non-trespassing public could have observed simply by driving up to the building in which [Appellant] was located. As such, a reasonable person videotaped under similar circumstances could not have considered such conduct ?highly offensive? or have taken ?serious offense? to it.

We agree.

Based on the foregoing, we conclude that Appellant failed to establish his right to privacy, even with Zeigler?s use of vision-enhanced photographic equipment, and Appellant?s second issue fails.

For more on the legal background behind the intrusion upon seclusion tort (?One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person?), and on similar cases in the past, please read the opinion.

Full post as published by The Volokh Conspiracy on August 11, 2010 (boomark / email).