United States: Intrusion Claim Against Documentary Filmmaker Dismissed

Trisha Rich is a Associate in our Chicago office .

After nearly three years of litigation, the intrusion upon seclusion case against documentary film company Kartmequin Films and anti-gang violence organization CeaseFire has been dismissed. Luten v. Kartemquin Films, Case No. 10 L 9181, Cook County, IL, Circuit Court (Case Management Order, June 5, 2013).

Background

The plaintiffs in Luten sued Kartemquin Films, a Chicago-based documentary film company, three individual cameramen, the anti-gang violence organization CeaseFire (a division of the University of Illinois), and two of CeaseFire's directors, following the March 2010 funeral of Annie Gibson Bacon. Bacon was the mother of nine children, including plaintiff Elnora Luten and former gang leader (and now federal prisoner) Jeff Fort. The other plaintiff in the case was Mustaafa Naji Fort, the son of Elnora Luten, and Bacon's grandson.

Jeff Fort was an early political leader in Chicago's gang scene, and co-founded Chicago's notorious Black P. Stones gang; Fort also went on to later found the El Rukn gang. In 1987, Fort was the first American convicted of terrorism, after conspiring with Muammar Gaddafi to sell arms to Libya, with the purpose of engaging in acts of domestic terrorism. Despite this past acts and current incarceration, Fort retains a strong following in many Southside Chicago neighborhoods, where he is revered to this day. Fort is currently housed in a supermax prison in Colorado, under a no human contact order.

In part because of Fort's cult-like following, Bacon's funeral was a very public event. The funeral was attended by approximately 1,500 individuals, and included a number of high profile speakers, including Congressman Bobby L. Rush (D-IL), a purported friend of the family. Another of the attendees was Ameena Matthews, Jeff Fort's daughter. Matthews is a high profile member of Chicago's anti-gang violence community, who went on to star in Kartemquin's documentary film, The Interrupters. As a personal favor, Matthews had requested that the Kartemquin cameramen film Bacon's funeral, so that she could send a copy of the funeral footage to her father. A second film crew, requested by other family members, also attended and recorded funeral footage.

Following the funeral, plaintiffs brought suit alleging intrusion upon seclusion and intentional infliction of emotional distress. The plaintiffs alleged that the cameramen entered the church and filmed footage of the plaintiffs grieving, and of the deceased. The plaintiffs further alleged that they were unaware at the time of the filming that the cameramen were not part of the second film crew they hired, and only learned later that the cameramen were part of another group. Plaintiffs alleged that the defendants "committed an act of unauthorized intrusion and prying upon the seclusion" by "making [an] unauthorized film or videotape of the funeral and of [plaintiffs'] grief." Plaintiffs alleged that the footage of their grieving constituted "private facts." Although the plaintiffs alleged in their complaint that the filming took place during the funeral at the church, in the presence of another film crew, the court refused to dismiss the intrusion upon seclusion claim.

Agreement to Dismiss

However, this past month, following protracted discovery, the court entered an order dismissing the case, pursuant to an agreement reached by the parties. While the agreement itself is confidential, it was procured after testimony from several witnesses - including the plaintiffs themselves - confirmed that filming occurred only in the church, and only in the presence of hundreds of other attendees. Ultimately, it became clear to all parties that a claim of tortious intrusion could not survive.

The decision in Luten comes just a few months after the Illinois Supreme Court, in October 2012, first recognized the tort of intrusion upon seclusion, in Lawlor v. North American Corp. of Illinois, 2012 Ill 112530 (2012). Although each of the state's appellate court divisions (and in fact, most of the other states) had already recognized the tort, the Illinois Supreme Court had specifically declined to do so prior to Lawlor.

Illinois Intrusion Law

Under Illinois law, tortious intrusion plaintiffs must show four elements: (1) an unauthorized intrusion or prying into the plaintiff's seclusion; (2) the intrusion must be offensive or objectionable to a reasonable person; (3) the matter upon with the intrusion occurs must be private; and (4) the intrusion must cause anguish and suffering. Schiller v. Mitchell, 357 Ill.App.3d 435, 440 (2nd Dist. 2005). The third element of the tort is a predicate for the other three; unless the matter is private, no claim can stand. Busse v. Motorola, Inc., 351 Ill.App.3d 67, 72 (1st Dist. 2004). Even prior to the Lawlor case, the Illinois Supreme Court had noted that any successful claim for would require a highly offensive intrusion. Lovgren v. Citizens First Nat'l Bank of Princeton, 126 Ill.2d 411, 416-17 (1989). In Lovgren, the Supreme Court noted some examples that might form the basis for a tortious intrusion claim: "invading someone's home, an illegal search of someone's shopping bag in a store, eavesdropping by wiretapping; peering into the window of a private home; and persistent and unwanted telephone calls." Lovgren, 126 Ill.2d at 417.

The most important of the required elements is the presence of private facts. Busse, 351 Ill.App.3d at 72. When determining whether something is a "private fact," courts have looked for the presence of personal information about people that is private. Busse, 351 Ill.App.3d at 69. Illinois courts have found that cell phone data, including names, telephone numbers, addresses, or social security numbers, are not "private facts" under this analysis. Busse, 351 Ill.App.3d at 72; see also, Cooney, 943 N.E.2d at 32 (social security numbers are not private facts); Geisberger v. Willuhn, 72 Ill.App.3d 435, 439 (1st Dist. 1979) (matters of public record, such as names and birth dates, are not private facts).

Illinois courts have, however, found that the unauthorized, covert video surveillance of medical examinations likely constituted private facts. Acuff v. IBP, Inc., 77 F.Supp.2d 914, 920 (C.D. Ill. 1999). Likewise, in Johnson v. Kmart Corp., the court found that an issue of fact existed as to whether private facts were at issue where the defendant hired private detectives to pose as employees, and gather data and personal information about current employees that included health problems, family problems, romantic interests, sex lives, future work plans, and criticism of the defendant. Johnson v. Kmart Corp., 311 Ill.App.3d 573, 577-580 (1st Dist. 2000). The plaintiffs' theory in Luten, that "private grieving" constitutes private facts, remains substantively untested.

Intrusion upon seclusion also requires that the plaintiff actually be secluded; there has to be an unauthorized intrusion or prying into the plaintiff's seclusion. Schiller, 357 Ill.App.3d at 435. Under Illinois law, examples of "secluded places" have included medical exam rooms, restrooms, and private homes. See, Acuff, 77 F.Supp 2d at 92 , Benitez v. KFC Nat'l Mgmt. Co., 305 Ill.App.3d 1027, 1033 (2nd Dist. 1999), and Lovgren, 126 Ill.2d at 417. Further, Illinois courts have found tortious intrusion claims to exist where parties have intruded upon the "the solitude or seclusion of another." Burns v. Masterbrand Cabinets, Inc., 369 Ill.App.3d 1006, 1012 (4th Dist. 2007). For instance, in Burns, an appellate court found that a claim for tortious intrusion survived dismissal where a private investigator sought entry into the plaintiff's home under false pretenses, brought a hidden camera into the plaintiff's home, and recorded the interaction.

New Cases Testing Boundaries

A new Illinois case, filed in April 2013, provides a unique interpretation of the facts required to meet the elements of intrusion upon seclusion. John Doe v. Jane Doe¸ Case No. 1:13-cv-02790, currently pending in the United States District Court for the Northern District of Illinois, alleges that the plaintiff, a recent college graduate residing in Chicago, Illinois, met the defendant on the internet and that they had interacted via Skype. During these communications, the plaintiff "engaged in sexual conduct," that was viewable to the defendant. The plaintiff alleges that, without his authorization, consent, or knowledge, the defendant recorded audio and video of the sexual conduct.

The plaintiff alleges that the defendant then demanded the sum of $200.00 from the plaintiff, in exchange for not making the recording public. When the plaintiff did not comply, the defendant allegedly posted the recording to at least one pornographic website, and identified the plaintiff by name in the postings. While the plaintiff has been able to remove the offending material, he filed the suit against the still-anonymous defendant, alleging violations of the federal wiretap act, the Illinois eavesdropping statute, public disclosure of private facts, and intrusion upon seclusion.

With respect to the intrusion claim, the plaintiff alleges that he "consider[s] his Skype electronic and oral communications to be private." This appears to be the first case in Illinois where a plaintiff bases his claim on images he himself disseminated. A recent ruling by Judge Ronald A. Guzman may indicate the court's unwillingness to extend the tort's boundaries to encompass this type of conduct. On June 5, 2013, he denied plaintiff permission to proceed as a John Doe. In ordering the plaintiff to file an amended complaint in his own name or dismiss the suit, the court noted: "[The plaintiff] is an adult who voluntarily transmitted sexual conduct to a stranger over the internet, and his embarrassment is not a sufficient basis for proceeding anonymously."

While tortious intrusion upon seclusion cases have historically been used infrequently and somewhat narrowly in Illinois, recent cases like Luten and John Doe show plaintiffs are beginning to bring these claims more often, and in a significantly wider range of settings. What remains to be seen is how the courts will view these more aggressive claims - through the narrow lens that has historically applied only to actual intrusions into private places, such as medical exam rooms, restrooms, and private homes, or with a more plaintiff-friendly view, that would include, for instance, filming a plaintiff's "private" grieving, in full view of hundreds of other individuals. A more plaintiff-friendly environment, coupled with the ease of use and near universal application of the cell phone camera, guarantees that this is a tort with a potent future.

Originally published in MLRC MediaLawLetter

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