The Supreme Court of New Jersey’s recent decision in Friedman v. Martinez considered whether evidence of an actual viewing or recording is needed to establish an invasion of privacy. The Court found that victims do not need to present evidence that they were secretly recorded to bring a claim for intrusion on seclusion. An intrusion may be established by circumstantial evidence. The Court reasoned that “[i]t is the intrusion itself, and not an actual viewing, that is critical. And that intrusion takes place when a victim uses a private space where a spying device has been concealed; it does not depend on when — or whether — direct evidence of actual spying is found.”
In New Jersey, the tort of intrusion upon seclusion allows a claim when there is intentional intrusion, “physical or otherwise, upon the solitude or seclusion of another . . . if the intrusion would be highly offensive to a reasonable person.” But there is no requirement that the victim show that someone actually saw or heard or recorded information to bring a claim for intrusion on seclusion. At the same time, though, no reported New Jersey case squarely addresses whether placing a recording device in a private space is enough to establish an invasion of privacy absent proof of an actual recording.
In this case, on November 2009, an employee of a corporate tenant of a five-story office building discovered a camera in the ceiling of a women’s restroom on the third floor. A police investigation led to the arrest of a janitor, Teodoro Martinez (“Martinez”), who worked at the office building. Martinez admitted that he had hidden three or four cameras in the building. The recording devices were portable and the recordings on the devices ranged from two to fifty minutes long. Martinez said that he watched some of the videos and erased some of that footage. After consenting to a search of his home, the police recovered cameras and electronic equipment that yielded about three hours of footage of women in a bathroom or in the locker room near the building’s first-floor gym. A grand jury returned an indictment against Martinez that charged him with one count of third-degree invasion of privacy. He then fled the country.
A group of 60 women who had worked at the office eventually filed an eleven-count lawsuit against multiple defendants, including Martinez, the owner of the building, the building’s property manager, and two security guards. Two groups emerged, namely, the “Friedman plaintiffs” and the “Arendt plaintiffs.” The Friedman plaintiffs represented a group of approximately thirty women who could identify their images on the video footage. The Arendt plaintiffs represented the remaining thirty-five women who could not.
In January 2014, the trial court dismissed the claims of the Arendt plaintiffs, saying that there was no evidence that they used a restroom while a camera was concealed there.
The Arendt plaintiffs appealed. The Appeals Court reversed the trial court’s decision and decided that they could have a claim for intrusion upon seclusion without proof that “their images were actually captured” in a recording. Although the absence of direct evidence may affect the amount of a victim’s money damages, the Court noted, it is possible to prove an invasion of privacy through circumstantial evidence.
The Appeals Court observed that “a reasonable inference must arise in favor of . . . plaintiffs who were unable to “identify themselves from a recorded image if a plaintiff could assert her use of the facilities during the same general time frame other plaintiffs were spied upon.
The Supreme Court of New Jersey then weighed in. It agreed with the Appeals Court’s conclusion that victims do not need to present evidence that they were secretly recorded to bring a cause of action for intrusion on seclusion. The Court explained that “[t]o recover in a case like this, a victim would need to show that she used an area reasonably expected to be private, like a restroom or locker room, while a recording device was concealed there.”
Ultimately, though, the Supreme Court found that the trial court properly dismissed the Arendt plaintiffs’ claims. The reason was that nearly three years after filing the lawsuit, the Arendt plaintiffs had not offered any proof that they used a restroom while a camera was placed there. The Court also found that the evidence did not show that cameras had been placed in all bathrooms in the building. Therefore, the Arendt plaintiffs did not satisfy their burden of proof to support a claim.
Elissa Frank, who wrote this, is in her 3rd and final year at Rutgers Law School, where she is Editor-in-Chief of the Rutgers Law Record