USDC N.D. Illinois, May 7, 2009

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  • Court held plaintiffs adequately stated a claim for intrusion upon seclusion based on actions of CBS cameraman who videotaped plaintiffs and their children while they were playing in a fenced-in backyard but court dismissed claims based on publication of the video as barred by statute of limitations

Plaintiffs claimed CBS Broadcasting invaded their privacy by videotaping and spying upon a private matter and by writing and falsely reporting about them. Plaintiffs alleged that a CBS cameraman, standing in a neighbor’s house and using a telephoto lens, videotaped plaintiffs inside the house and plaintiffs’ children playing in the fenced-in back yard, and that CBS published the videotape on television and on the Internet.

CBS moved for judgment on the pleadings, asserting that the plaintiffs’ claims were barred by the statute of limitations, and alternatively that plaintiffs failed to state a claim because their claims were based on the publication of the videotape and not the act of videotaping.

In Illinois, to recover on a claim for intrusion upon seclusion a plaintiff must show: (1) he or she was in a place that a reasonable person would believe to be “secluded”; (2) the intrusion would be highly offensive to a reasonable person; (3) the matters intruded upon were “private”; and (4) the intrusion caused the plaintiff “anguish and suffering.”

The court acknowledged that claims based on publication fall outside the scope of the state’s intrusion upon seclusion law, and that actions for publication of a matter violating the right of privacy have a one-year statute of limitations. Under Illinois law, actions for slander, libel or for “publication of matter violating the right of privacy shall be commenced within one year next after the cause of action accrued.” 735 ILCS 5/13-201. Therefore, the court rejected plaintiffs’ claim for intrusion upon seclusion as it related to the publication of the videotape.

However, the court held that plaintiffs were entitled to amend their complaint to state a claim for intrusion upon seclusion based solely on the act of videotaping and that such a claim was not barred by the statute of limitations (Illinois case law has held that the tort of intrusion upon seclusion is not governed by 735 ILCS 5/13-201). The court held that “plaintiffs’ allegations that they were swimming in the backyard pool of a private home surrounded by a seven foot privacy fence are sufficient to allege both that they believed they were in a secluded place and that the activity was private. Finally, we hold that a reasonable person could find that a television cameraman using a telephoto lens to videotape the Webbs and their children in their bathing suits around a private backyard pool to be highly offensive.”

The court also denied defendants’ motion for judgment on the pleadings of plaintiff’s intentional infliction of emotional distress claim.