Hepler Broom, LLC

Illinois Supreme Court Recognizes New Privacy Tort: Intrusion Upon Seclusion

March 10, 2013

Following the lead of multiple Illinois appellate districts, the Illinois Supreme Court recently recognized for the first time an actionable tort for “intrusion upon seclusion.”  Intrusion upon seclusion is one of four torts generally recognized under the umbrella of the “right to privacy” torts along with public disclosure of embarrassing private facts, publicity which places a person in a false light in the public eye, and appropriation of a person’s name, likeness or identity for trade or advertising purposes without consent.

In Lawlor v. North American Corporation of Illinois, 2012 IL 112530 (Oct. 18, 2012), the plaintiff (Lawlor) was a successful saleswoman who left her job to join a competitor.  Lawlor’s former employer hired a private investigation agency to determine whether she was contacting customers in violation of her non-compete agreement with the company. The private investigation agency then hired a subcontractor which used a “pretexting scheme” where someone pretended to be Lawlor in order to gain access to her telephone records without her permission.

Lawlor found out about the scheme and sued the company for invasion of privacy through intrusion upon seclusion.

At trial, the former employer argued that it could not be held liable because the private investigation agency was an independent contractor acting on its own accord. The jury disagreed and awarded Lawlor $65,000 in compensatory damages and $1.75 million in punitive damages. The Illinois appellate court affirmed the judgment.

On appeal, the Supreme Court upheld the judgment finding that there was sufficient evidence for the jury to conclude that the former employer set in motion the process by which the investigators posed as Lawlor in order to obtain her private information. The Court did, however, reduce the punitive damages award to $65,000 to match the award of compensatory damages.

In recognizing the tort of intrusion upon seclusion, the Court officially adopted the Restatement (Second) of Torts definition which provides that: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

This broad definition would seemingly encompass a wide-range of “investigatory” acts including wire-tapping, impersonation, opening another’s mail, or placing hidden cameras in a location where a person has a reasonable expectation of privacy. Following Lawler, it is important for employers in Illinois to understand that they can be held liable for these types of acts even when performed by a seemingly “independent” investigator.  As a result, employers should always set the parameters and closely monitor any investigation performed on their behalf in order to avoid potential liability going forward.