In a recent appellate opinion from the Second District Court of Appeal, the court reversed the denial of a grant of a temporary injunction in a dispute between neighbors involving the use of video recording devices. The case involved a dispute between the Jackman and the Swartz families. The families had an ongoing dispute concerning the common borer of their properties. The Swartzes installed a twenty-five-foot-high rooftop camera with night-vision capabilities which recorded twenty-four hours a day. The camera was positioned to see over the Jackmans' privacy fence, allowing the Swartzes to see into a portion of the Jackmans' backyard and the edge of their lanai. Testimony reflected that the camera could also see the side door to the Jackmans' home but could not see beyond the threshold of the door when it was open. The Jackmans sent the Swartzes a letter demanding that the camera be removed. The Swartzes refused, and the Jackmans' suit followed.
The Jackmans’ sued for invasion of privacy and sought an injunction to require the Swartzes to discontinue use of the camera. The trial court denied the injunction 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. The appellate court reversed holding that publication is not a required element for the tort of invasion of privacy -- intrusion upon seclusion. The court further held that 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.
Recognizing that due to the proliferation of home surveillance cameras and drones, there is some uncertainty about what surveillance activities may be maintained without resulting in an invasion of privacy of another person. Thus, the appellate court certified the following question as one of great public importance:
DOES THE USE OF A CAMERA BY A PRIVATE CITIZEN TO MONITOR AND/OR RECORD ACTIVITIES OCCURRING WITHIN THE CURTILAGE OF A HOME SURROUNDED BY A PRIVACY FENCE NOT BELONGING TO THE CAMERA OPERATOR CONSTITUTE THE TORT OF INVASION OF PRIVACY -- INTRUSION UPON SECLUSION?
The takeaway from this case is that both homeowners and businesses should consider the monitoring technology used for personal and business purposes. Behaviors controlled by antiquated rules of privacy may need recalibration with the advent of technology. Until the Florida Supreme Court answers the certified question the use of technology to view others’ activities that are not readily observable may constitute an invasion of privacy actionable in court.
Rosenthal Law Group can assist you with appropriate planning to avoid litigation.