FL2: Private pole camera was potentially the tort of “intrusion on seclusion”

In a fence line dispute, defendants’ posting a 25’ high pole camera watching plaintiff’s property stated a claim for intrusion on seclusion. Jackman v. Cebrink-Swartz, 2021 Fla. App. LEXIS 4321 (Fla. 2d DCA Mar. 26, 2021). So how will this play with police pole cameras?

The tort of invasion of privacy is comprised of several different forms. Intrusion upon seclusion is defined as where a person “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns … if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts § 652B (Am. Law Inst. 1977); see also Purrelli v. State Farm Fire & Cas. Co., 698 So. 2d 618, 620 (Fla. 2d DCA 1997). Notably, this form of invasion of privacy “does not depend on any publicity given to the person whose interest is invaded or to his affairs.” Restatement (Second) of Torts § 652B cmt. a. (Am. Law Inst. 1977).

Here, the trial court erred by concluding that the Jackmans could not establish a likelihood of success on the merits because the Jackmans had not established that the videos from the offending camera had been published to a third party. That is not a required element for the tort of invasion of privacy—intrusion upon seclusion. See id.

Furthermore, there is a reasonable expectation of privacy within the curtilage of a residence, and we conclude that there is a material difference between occasionally viewing the activities within a neighbor’s backyard that are observable without peering over a privacy fence and erecting a camera to see over a privacy fence to thereafter surveil and record those activities on a consistent basis. See Goosen v. Walker, 714 So. 2d 1149, 1150 (Fla. 4th DCA 1998) (recognizing that engaging in repeated surveillance of another person can constitute the tort of invasion of privacy—intrusion upon seclusion); Shafer v. City of Boulder, 896 F. Supp. 2d 915, 931 (D. Nev. 2012) (citing United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987), for the proposition that video surveillance of someone’s backyard is different from a onetime overhead glance and that society would recognize a homeowner’s expectation to be free from such video surveillance to be reasonable); Baugh v. Fleming, No. 03-08-00321-CV, 2009 WL 5149928 (Tex. App. Dec. 31, 2009) (holding that evidence was sufficient to establish intrusion upon seclusion claim where party videotaped neighbor through window by peering over six-foot-high privacy fence in their backyard). Indeed, the Jackmans expressly established their “subjective expectation of privacy” by erecting the six-foot-high privacy fence and posting “no trespassing” signs. Cf. Brown v. State, 152 So. 3d 619, 624 (Fla. 3d DCA 2014) (recognizing that where homeowner enclosed his yard with two layers of fencing and posted “no trespassing” signs, the area was considered part of the curtilage of the home and also that because the area was not open or viewable to the public and not a place that the homeowner would have reasonably expected others to enter, the homeowner “exhibited an actual, subjective expectation of privacy that society is prepared to recognize as reasonable”); Baugh, 2009 WL 5149928 at *2 (noting distinction between someone watching someone else standing in front of a large window with the blinds open from across the street and someone watching someone else by peering over a privacy fence into their backyard).

We do not overlook the Swartzes’ argument that the Jackmans had their own camera installed on their home and that it surveilled a portion of the Swartzes’ home. However, the Swartzes have acknowledged that the Jackmans’ camera is aimed primarily at the border area between the homes—rather than into the Swartzes’ backyard—and that it is facing the street. Further it is undisputed that the door of the Swartzes’ home that is visible to the Jackmans’ camera is a side door to the house which is visible from the street. Thus the Swartzes do not have the same subjective expectation of privacy related to that area of their home as they would if it was enclosed by a privacy fence adorned with “no trespassing” signs. Cf. Brown, 152 So. 3d at 624; Baugh, 2009 WL 5149928 at *2. Therefore we are not persuaded that the Jackmans’ motion should have been denied on the basis of a defense of unclean hands.

Accordingly, we hold that the trial court erred by concluding that the Jackmans did not establish a likelihood of success on the merits of their claim for invasion of privacy—intrusion upon seclusion and by therefore denying their motion for a preliminary temporary injunction on that basis.