Sanders v. American Broadcasting Companies, Inc., et al.
978 P.2d 67 (1999)
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Rule of Law:
An employee in a workplace not open to the general public may have a reasonable expectation of privacy against covert videotaping by an intruder, even if the employee's conversations could be seen and overheard by coworkers.
Facts:
- Mark Sanders worked as a telepsychic for the Psychic Marketing Group (PMG) in a large office containing approximately 100 cubicles separated by five-foot-high partitions.
- The PMG office was not open to the general public, and internal policy prohibited access by nonemployees without specific permission.
- Stacy Lescht, a reporter for American Broadcasting Companies, Inc. (ABC), obtained a job as a telepsychic at PMG to conduct an undercover investigation of the industry.
- While working, Lescht wore a small video camera hidden in her hat and a microphone attached to her brassiere, secretly recording her conversations with coworkers.
- Lescht videotaped two conversations with Sanders, one outside her cubicle and another inside his, during which Sanders discussed personal aspirations and beliefs.
- These conversations were conducted in moderate to soft tones, but could have potentially been overheard by other employees in nearby cubicles or passing in the aisles.
Procedural Posture:
- Mark Sanders sued Stacy Lescht and American Broadcasting Companies, Inc. in California superior court (trial court) for invasion of privacy by intrusion and violation of Penal Code § 632.
- The trial was bifurcated, with the § 632 claim tried first.
- A jury returned a special verdict finding that Sanders's conversations occurred in circumstances where he could reasonably expect them to be overheard, resulting in a judgment for defendants on the statutory claim.
- Defendants moved for nonsuit on the common law intrusion claim, arguing the jury's finding negated any expectation of privacy, but the trial court denied the motion.
- A jury in the second phase of the trial found defendants liable for intrusion and awarded Sanders compensatory and punitive damages.
- Defendants, as appellants, appealed to the California Court of Appeal.
- The Court of Appeal reversed the trial court's judgment, holding that the jury's finding on the § 632 claim legally precluded the intrusion claim.
- Sanders, as petitioner, successfully petitioned the Supreme Court of California for review.
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Issue:
Does a person who lacks a reasonable expectation of complete privacy in a workplace conversation, because it could be seen and overheard by coworkers but not the general public, nevertheless have a claim for invasion of privacy by intrusion against a television reporter who covertly videotapes that conversation?
Opinions:
Majority - Werdegar, J.
Yes. A person who lacks a reasonable expectation of complete privacy in a workplace conversation may nonetheless have a claim for invasion of privacy by intrusion based on covert videotaping by a reporter. Privacy, for the purposes of the intrusion tort, is not a binary, all-or-nothing characteristic; it is relative. The fact that a conversation could be overheard by coworkers does not, as a matter of law, eliminate a person's reasonable expectation that the conversation will not be secretly recorded by an undercover journalist and broadcast to the public. The reasonableness of an expectation of privacy must be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion. While an employee may accept the risk of being overheard by colleagues, they do not necessarily assume the risk of being secretly videotaped for mass dissemination.
Analysis:
This decision significantly clarifies the tort of intrusion by establishing that the expectation of privacy is not absolute but relative. It confirms that an employee retains a sphere of privacy in a non-public workplace, even in an open-office environment, protecting them from covert recording by outsiders like investigative journalists. The ruling places a check on undercover newsgathering techniques, requiring media organizations to consider that even if conversations are not fully secluded, secret electronic recording may still be tortious. The case sets a precedent that the identity of the intruder and the method of intrusion are critical factors in determining whether a reasonable expectation of privacy has been violated.
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