There is an interesting tort case in Iowa where Jeffrey Tigges of Dubuque, was found by his wife to have secretly mounted cameras in their bedroom and filmed them in private. A court awarded Cathy Tigges (now divorced) $22,500 for invasion of privacy.

The arguments in this case are fascinating. Jeffrey contended that Cathy had no expectation of privacy from him in their home and that there was no invasion of privacy since the only person who saw the videos was her sister.

He had mounted cameras above a ceiling and in a bedroom alarm clock as well as a motion-sensing”optical eye” in a headboard over their bed. She found one of the cameras in 2006.

The court notes that this was not the typical Ozzie and Harriet relationship:

“Even before their marriage, Jeffrey and Cathy had recorded each other’s telephone conversations without the other’s knowledge and consent. Apparently undeterred by their history of discord, they were married on December 31, 1999. Jeffrey surreptitiously installed recording equipment and recorded Cathy’s activities during the marriage in the marital home.”

Justice Daryl Hecht was unmoved by spousal claims and the alleged lack of harm, saying that his “conduct is not excused by the fact that the surreptitious taping recorded no scurrilous or compromising behavior . . . The wrongfulness of the conduct springs not from the specific nature of the recorded activities, but instead from the fact that Cathy’s activities were recorded without her knowledge and consent at a time and place under circumstances in which she had a reasonable expectation of privacy.”

Two torts are relevant in such cases. Intrusion Upon Seclusion is rarely used against a spouse since they are generally treated as one person and consensually reveal themselves in their home. There is also Publication of Embarrassing Private Facts.

The court relies on seclusion after applying the Second Restatement standard:

The right to privacy can be invaded by: (a) unreasonable intrusion upon the seclusion of another . . .; or (b) appropriation of the other’s name or likeness . . .; or (c) unreasonable publicity given to the other’s private life . . .; or (d) publicity that unreasonably places the other in a false
light before the public . . . .

Restatement (Second) of Torts § 652A(2) (emphasis added).

Notably, one critical fact remains in dispute: whether they were living together:

“The district court found the videotaping occurred when “the parties were
separated and residing in separate residences.” The court of appeals concluded “the
incidents testified to by Cathy clearly occurred while the parties were still residing in
the same house together as husband and wife.” We find the record lacks sufficient
clarity to determine by a preponderance of the evidence whether Jeffrey was residing in
the marital home or in a separate residence when he installed the cameras and when
the recording was accomplished.”

This is not the first such case. In Miller v. Brooks, 472 S.E.2d 350 (N.C. Ct. App. 1996), a husband was allowed to sue his wife after he learned that she had hired private investigators to install a hidden camera in the bedroom of her estranged husband’s separate residence. North Carolina Court of Appeals noted the expectation of privacy “might, in some cases, be less for married persons than for single persons,” but that “such is not the case . . . where the spouses were estranged and living separately.” Id. at 355.

Likewise, in Clayton v. Richards, 47 S.W.3d 149 (Tex. App. 2001), a wife hired the defendant to install equipment in her bedroom with her husband. Mr. Clayton sued his wife and Richards, alleging invasion of his privacy. The Texas Court of Appeals noted:

“A spouse shares equal rights in the privacy of the bedroom, and the other spouse relinquishes some of his or her rights to seclusion, solitude, and privacy by entering into marriage, by sharing a bedroom with a spouse, and by entering into ownership of the home with a spouse. However,nothing in the . . . common law suggests that the right to privacy is limited to unmarried individuals.

When a person goes into the privacy of the bedroom, he or she has a right to the expectation of privacy in his or her seclusion. A video recording surreptitiously made in that place of privacy at a time when the individual believes that he or she is in a state of complete privacy could be highly
offensive to the ordinary reasonable person. The video recording of a person without consent in the privacy of his or her bedroom even when done by the other spouse could be found to violate his or her rights of privacy. As a spouse with equal rights to the use and access of
the bedroom, it would not be illegal or tortious as an invasion of privacy for a spouse to open the door of the bedroom and view a spouse in bed. It could be argued that a spouse did no more than that by setting up a video camera, but that the viewing was done by means of technology rather
than by being physically present. It is not generally the role of the courts to supervise privacy between spouses in a mutually shared bedroom. However, the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse because it may record private matters, which could later be exposed to the public eye. The fact that no later exposure occurs does not negate that potential and permit willful intrusion by such technological means into one’s personal life in one’s bedroom.”

Id. at 155–56 (citations omitted) (emphasis added).

Since my kids treat my morning shower as a live performance suitable for group viewing, I can’t imagine any privacy expectations that I have left at this point. However, this case hits at a fascinating point between common views of spousal and tort liability.

For the opinion, click here.

For the full story, click here.