20. Can the writer recover damages from the assistant?

Under a theory of invasion of privacy, a plaintiff can recover for four types of wrongs: (i) appropriation by the defendant of the plaintiff's picture or name for commercial advantage; (ii) intrusion by the defendant upon the plaintiff's affairs or seclusion; (iii) publication by the defendant of facts placing the plaintiff in a false light; and (iv) public disclosure by the defendant of private facts about the plaintiff. To make a prima facie case for intrusion upon affairs or seclusion, a plaintiff must prove that (i) there was an act of prying or intruding by the defendant on the affairs or seclusion of the plaintiff; (ii) that the intrusion would be highly offensive to a reasonable person; and (iii) that the thing to which there was an invasion or prying is private.

C is correct. Under the facts as presented, the assistant intruded upon the writer's seclusion. The writer's email account was private, and the writer did not leave the emails exposed so others might see them. In fact, the assistant was only able to access the emails by spying on the writer to observe her private password. Consequently, the writer could recover damages against the assistant on an invasion of privacy claim based upon intrusion on seclusion.

A is incorrect. The writer will not be barred from recovering against the assistant on the basis that the assistant was an invitee. Under the facts as presented, the assistant likely had invitee status through his employment generally, as well as his specific invitation to work from the premises. However, an invitation to enter premises does not include permission to access personal email. Further, under the facts here, the writer did not leave her emails exposed so that others might see them, and the assistant was only able to access the emails by covertly observing the writer typing in her private password. Therefore, because the assistant clearly exceeded the scope of any invitation by his actions, the assistant's invitee status would not be a defense to an invasion of privacy claim.

B is incorrect. The writer will not be barred from recovering against the assistant on the basis that the published information resulting from the assistant's conduct was true and concerned matters of public interest. Although truth is an absolute defense to all types of defamation claims, it is not a defense to invasion of privacy. A defendant can be held liable for public disclosure of private information, even if that information is true. Comparably, in some instances, the First Amendment or a common law defense based on public interest can sometimes provide a defense to a tort claim based on the public disclosure of private matters.

Nevertheless, news-gathering and «newsworthiness» do not provide a general immunity from tort law. The defenses applicable to defamation or public disclosure of private facts are inapplicable to an intrusion upon seclusion claim. To this end, because the assistant pried into information which the writer kept private, the assistant would not escape liability simply because the information he leaked was true and newsworthy.

D is incorrect. Although the writer would be able to recover against the assistant, it would not be on the basis that the published information resulting from the assistant's conduct constituted publication of private facts concerning the writer. Instead, the most appropriate privacy action, as well as the one under which the writer would most likely recover, would be for intrusion on seclusion. Public disclosure of embarrassing private facts would not be the best claim because there is no indication from the facts as presented that the facts published were embarrassing to the writer. To this end, intrusion would be the better claim, because publication would be irrelevant.

In order to establish an invasion of privacy claim based on intrusion, the writer would need to show that the assistant had pried or intruded into her affairs and that the intrusion or prying was into private details. The writer should be successful because the assistant did not have permission to access the emails, and the writer did not leave the emails exposed.