Claim for Intentional or Negligent Invasion of Privacy Against A Private Investigator: Can they really do that?
On July 7,2011, our Appellate Division decided a case called Villanova v. Innovative Investigations, Inc., in which a person made a claim for intentional or negligent invasion of his right of privacy against a private investigator and the investigator’s company. Plaintiff’s wife hired a company to investigate plaintiff’s suspected infidelities. In the course of doing so, the investigator suggested to plaintiff’s spouse that she place a global positioning system (GPS) device in one of the family vehicles to assist in tracking plaintiff’s whereabouts. The trial court granted summary judgment, deciding that plaintiff failed to make out a prima facie case of the tort of invasion of privacy.
In this case, plaintiff’s wife purchased the device through the internet and placed it in the glove compartment of a vehicle which was jointly owned by the husband and wife. The vehicle was insured only for personal use, not work related activity. Plaintiff’s spouse paid the insurance premiums out of a joint account held by her and plaintiff. In deposition testimony, plaintiff’s spouse acknowledged that she obtained reports over the internet from the GPS provider regarding the movements of the vehicle. Defendants contended that the tracking of a vehicle driving on public roadways or other areas in which the public is allowed, cannot constitute an invasion of privacy, because the driver of the vehicle has no expectation of privacy in those circumstances.
The Villanova Court confirmed that as a tort, invasion of privacy encompasses “four distinct kinds of invasion of four different interests of the plaintiff,” citing Rumbauskas v. Cantor, 138 N.J. 173, 179 (1994), where the New Jersey Supreme Court quoted William L. Prosser, The Law of Torts, section 112 (3d ed. 1964). These are:
(1)intrusion (e.g., intrusion on plaintiff’s physical solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping, or prying into personal affairs); (2) public disclosure of private facts (e.g., making public private information about plaintiff); (3) placing plaintiff in a false light in the public eye (which need not be defamatory, but must be something that would be objectionable to the ordinary reasonable person); and (4) appropriation, for the defendant’s benefit, of the plaintiff’s name or likeness.
(Id. At 180.)
In Villanova, the Appellate Division ruled that the placement of a GPS device in plaintiff’s vehicle without his knowledge, but in the absence of evidence that he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy, does not constitute the tort of invasion of privacy. Accordingly, the Appellate Division affirmed the trial court’s dismissal of the case. The Appellate Division did acknowledge that the New Jersey Constitution guarantees individuals the right of privacy.