The tort was described in William Prosser's American authority on tort law, Restatement (Second) of Torts (2010), at ¶652B as follows:
"One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person."
In his 2011 article for the University of Miami Law Review, Quin Landon wrote:
"The first branch of privacy, intrusion upon seclusion, protects an individual from the intentional invasion of solitude or seclusion of another through either physical or nonphysical means, such as eavesdropping, peeping through windows, or surreptitiously opening another's mail. The second branch, appropriation or the right of publicity lends protection to another's name or likeness. Publication of private facts, the third branch, involves preserving the right of an individual to be free from the publication of true facts that the common law regards as private and, essentially, nobody's business. The last branch of privacy protects an individual from being placed in a false light in the public eye."
Writing for a unanimous majority in Jones v Tsige, Justice Sharpe of the Ontario Court of Appeal considered and accepted that the tort existed in Canadian law also, adding:
"The tort includes physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff’s private affairs. Of particular relevance to this appeal, is the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, even though there is no publication or other use of any kind” of the information obtained."
"Generally speaking, to make out cause of action for intrusion upon seclusion, a plaintiff must show (i) an unauthorized intrusion; (ii) that the intrusion was highly offensive to the reasonable person; (iii) the matter intruded upon was private; and (iv) the intrusion caused anguish and suffering.
"The first element indicates that the tort focuses on the act of intrusion, as opposed to dissemination or publication of information. The focus of the court in determining whether this element is satisfied is on the type of interest involved and not the place where the invasion occurs.1
"With regard to the second element, factors to be considered in determining whether a particular action is highly offensive include the degree of intrusion, the context, conduct and circumstances of the intrusion, the tortfeasor’s motives and objectives and the expectations of those whose privacy is invaded.
"In determining the third element, the plaintiff must establish that the expectation of seclusion or solitude was objectively reasonable. The courts have adopted the two-prong test used in the application of the Fourth Amendment of the United States Constitution. The first step is demonstrating an actual subjective expectation of privacy, and the second step asks if that expectation is objectively reasonable.2
"The fourth element has received considerably less attention as anguish and suffering are generally presumed once the first three elements have been established....
"The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish....
"(P)roof of actual loss is not an element of the cause of action for intrusion upon seclusion."
- Craig, John, Invasion of Privacy and Charter Values: The Common Law Tort Awakens, 42 McGill L.J. 355 (1997)
Jones v. Tsige, 2012 ONCA 32
- Katz v US, 389 US 347 (1967 - NOTE 2)
- Quin, Landon, First Amendment and Speech-Based Torts: Recalibrating the Balance, 66 UMLR 157 (2011)
Roe v. Cheyenne Mt. Conf. Resort, Inc., 124 F. (3d) 1221 (1997) and Evans v. Detlefsen, 857 F. (2d) 330 (1988) NOTE 1.
- Snyder v Phelps, 131 S. Ct. 1207 (2011)