Phyllis Photo is a photographer for Snoop magazine. One day she is walking through a large sporting goods store, looking for camping equipment. Phyllis sees a door marked “Private—Employees Only.” Phyllis glances around to be sure no one is watching, opens the door marked “Private,” and quickly takes a picture of a person sitting at a desk. The person is reading a copy of Snoop. Phyllis then quickly leaves the store. Snoop prints the picture in its next issue in an ad for the magazine itself. Under the picture in the ad are the words, “Everyone, everywhere, anytime reads Snoop. Subscribe today!” The person in the picture, Ms. Smith, wants to sue for intrusion. Discuss the important elements of intrusion that Ms. Smith would have to prove and discuss any appropriate defenses.

Question

Explain why you think Ms. Smith or Snoop would win.

What will be an ideal response?

Answer 1

For intrusion, Smith would have to show that she had a reasonable expectation of privacy and that she did not give consent for the intrusion. First, there was no indication that the public generally was invited into Smith’s office. Although the store certainly invited the public into its building, making it a quasi-public place, it did not give permission to go into all offices without permission. Smith’s door was closed and marked “Private,” making it clear that the public was not invited into that office. Smith, then, had a reasonable expectation of privacy. Second, Phyllis did not receive permission to enter the office, and in no other way did Smith indicate she had given Phyllis her consent to her being in the office or taking the picture. As a result, Ms. Smith will win the case.