Planting GPS Device On Car Not Enough for Invasion of Privacy Claim – IL Fed Court

Troeckler v. Zeiser, 2015 WL 1042187, a recent Southern District of Illinois case, examines this question adapted to a plaintiff’s intrusion on seclusion claim filed against her ex-husband – the defendant who, with some help, secretly affixed a GPS device (a “black box”) to the plaintiff’s car.

The defendant’s two principal acts giving rise to plaintiff’s suit were (1) installing the GPS device; and (2) repeatedly trying to log-in to the plaintiff’s personal email, computer and cell phone accounts.  Plaintiff sued for invasion of privacy/intrusion on seclusion (the “Intrusion Claim”) and conspiracy against the ex-husband and the people he hired to install the device and log in to plaintiff’s e-mail.

The defendant moved to dismiss all claims and the Court dismissed some claims and sustained others.

On the Intrusion Claim, the court noted that in Illinois, intrusion on seclusion is a species of the invasion of privacy tort.  To make out a valid invasion of privacy claim in Illinois, a plaintiff must demonstrate (1) an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) an intrusion that is offensive or objectionable to a reasonable person, (3) the matter upon which the intrusion occurs is private; and (4) the intrusion causes anguish and suffering.

Element (3) – the intrusion involves something that is private – generates the most litigation.  Case examples of private matters include poking holes in a bathroom ceiling and installing hidden cameras in a doctor’s examination room.  Conversely, private facts contained in public records (name, address, SS #, e.g.) do not satisfy the privacy element.

The court looked to a New Jersey case for guidance as to whether installing a GPS device was actionable intrusion on seclusion.  The New Jersey court in Villanova v. Innovative Investigations, Inc., 21 A.3d 650 (N.J.App.Ct 2001) held that a defendant who surreptitiously placed a GPS monitor on her ex-husband’s car (to see if he was cheating on her) was not an invasion of privacy where there was no evidence the defendant drove his car into a private or secluded location.

Following the reasoning of the NJ case, the Troeckler court dismissed the plaintiff’s Intrusion Claim since the plaintiff failed to allege that she drove her car somewhere in which she had a reasonable expectation of privacy.

The plaintiff fared better on the Intrusion Claim as it pertained to the defendant hacking into her private email accounts.  The court found that for purposes of a motion to dismiss, the plaintiff did sufficiently allege a claim for invasion of privacy based solely on the e-mail allegations.

The plaintiff won and lost parts of her conspiracy claim against her ex and the various people he enlisted to help him install the GPS device and breach the plaintiff’s emails accounts.  Civil conspiracy requires concerted action and an underlying wrongful act.  Since the plaintiff failed to establish invasion of privacy on her Intrusion Claim, there was no predicate tort for the conspiracy.

The result was different with respect to the e-mail hacking though.  Since logging in to the plaintiff’s private accounts was a possible invasion of privacy (at least at the early pleading stage), the conspiracy claim survived as it related to the e-mail claims.


1/A defendant’s unauthorized hacking into a plaintiff’s private email accounts can underlie an intrusion on seclusion/invasion of privacy claim;

2/ In the context of installing a monitoring device on someone’s car, the privacy tort is applied literally: if the plaintiff doesn’t show that she drove somewhere private or “secluded,” invasion of privacy isn’t the proper cause of action to assert.  With the benefit hindsight, the plaintiff probably should have pled a violation of the civil stalking statute based on the defendant’s GPS installation.

Chicago News Reporter’s Defamation and Intrusion on Seclusion Suit Against Rival Networked Tossed (IL First District)


(Photo credit: Google images (visited 10.29.14); Associated Press)

The First District recently weighed in on the nature and scope of defamation law and the false light and intrusion on seclusion civil claims in a case involving a well-known Chicago newscaster.

In Jacobson v. CBS Broadcasting, Inc., 2014 IL App (1st) 132480, the plaintiff – a former NBC television reporter – sued rival network CBS when it aired a video of her at the backyard swimming pool of a person of interest in a high-profile missing persons’ case the plaintiff was covering.

CBS showed a video it secretly took of the plaintiff while she was visiting the house of Craig Stebic – whose wife Lisa went missing in 2007 and who hasn’t resurfaced to this day.  The case garnered daily local and national news coverage for several weeks and was a staple of Nancy Grace’s nightly CNN show.

At the height of the case’s notoriety, plaintiff went to the Stebic house to discuss the case. While there, she was videotaped by a neighbor and CBS reporter. Sensing some salacious television fare (my conjecture), CBS aired the tape and plaintiff was shortly fired by NBC for violating journalistic ethics rules (a lapse in judgment, according to network honchos).

The plaintiff sued Chicago’s CBS station, claiming that the tape and broadcast violated her right to privacy, was defamatory, and led to her firing by NBC. The plaintiff specifically alleged that the videotape placed her in a false light and tried to portray her as “an adulteress and an unethical reporter.”

The trial court granted summary judgment for CBS and plaintiff appealed.

Held: Affirmed.


Plaintiff’s claims failed because she was a public figure, failed to prove actual malice by CBS and lacked a reasonable expectation of privacy at a backyard swimming pool.

Defamation Count: Plaintiff is a ‘Limited Public Figure’

The Court found that plaintiff was a public figure under defamation law who must show “actual malice” to win a defamation suit.  Two types of public figures include (1) a general purpose public figure, and (2) a limited purpose public figure.  When someone “thrust [herself] to the forefront of a particular public controversy, she becomes a limited public figure for matters associated with the given controversy. ¶¶ 29-31.

The Court agreed with the trial judge that plaintiff was a limited purpose public figure since she was enmeshed with a controversial news story that attracted national attention.  Plaintiff clearly injected herself into the teeth of the drama by frequenting the Stebic residence, participating in public vigils and urging the public to come forward with any information about Lisa Stebic’s whereabouts.

The Court also found that plaintiff failed to show “actual malice” by CBS. To defeat summary judgment in a defamation count, the public figure plaintiff must show actual malice: that defendant (1) published (i.e. wrote or said) the defamatory falsehood either with knowledge that it was false, or (2) with a reckless disregard to its truth.  Reckless disregard means that the defendant had a “high degree of awareness” that the statement was probably false or “entertain[ed] serious doubts as to its truth.”  Where the defamatory content is implied (rather than overt), the plaintiff has to show the defendant was subjectively aware of the implied meaning, or at least recklessly disregarded the implied meaning.

The crux of plaintiff’s defamation suit was the video’s juxtaposed images: plaintiff in her swimsuit cross-cut against a shirtless Craig Stebic.  Plaintiff claimed the video implied a sexual relationship between the two.

The court held this wasn’t enough to establish express or implied malice.  There were too many non-defamatory alternatives to plaintiff’s interpretation of the video – especially since plaintiff’s children and other people were in the backyard at the same time.  The Court also declined to imply actual malice by CBS just because it was locked in a fierce ratings battle with NBC at the time of taping. ¶¶ 37, 41-42.

Take-aways: (1) A limited purpose public figure must meet heightened actual malice standard to state a defamation case; (2) intrusion on seclusion tort is difficult to win where the location of an alleged private or secluded site is easily viewed or accessed by third parties.

Employee Sues After Employer Hijacks Personal Twitter and Facebook Accounts (the ‘With Friends Like These…’ Post)

The case is dated (2011) but interesting.   The salient issues in Maremont v. Fredman, 2011 WL 6101949 (N.D.Ill. 2011), have enduring relevance in this culture of omnipresent electronic commerce and social media use.  The case is also post-worthy for its discussion of state law privacy and publicity torts in a computerized factual setting.

Plaintiff was director of marketing for the defendant interior design firm where she was in charge of formulating and executing the firm’s social media marketing efforts.  After she was hospitalized in a serious car crash, plaintiff alleged someone from the design firm accessed her personal Facebook and Twitter accounts and sent promotional messages to plaintiff’s Twitter and Facebook followers/friends.  Plaintiff filed suit against the design firm and its principal officer under the Federal Lanham Act (15 U.S.C. § 1125)  and Stored Communication Act (18 U.S.C. § 2701) and also for violating the Illinois Right to Publicity Act (765 ILCS 1075/60) and for common law intrusion on seclusion.  The parties moved for summary judgment on all claims.

Result: The Court denied both parties’ summary judgment motions on plaintiff’s Lanham Act (a false association claim) and Stored Communication Act claims.  The Court granted summary judgment for defendants on plaintiff’s state law publicity and privacy claims.


The Court denied both parties’ summary judgment motions on Plaintiff’s false association claim.  Also called  false endorsement, an action for false association lies where a person’s identity (including likeness, voice, or other unique characteristics) is impermissibly connected with defendant’s product or service in such a way that consumers get the impression that plaintiff sponsors or endorses defendant’s products or services.  A false association/endorsement plaintiff must show she has a reasonable interest to be protected and an intent to commercialize her identity.  Otherwise, anonymous persons with no ability to monetize their identity could conceivably sue for false association.  The plaintiff must also prove actual economic damages (e.g. lost sales, profits, good will) resulting from the consumers’ reliance on defendant’s misleading statements or conduct.  Maremont, *4.

Here, the Court did find that plaintiff had a well-known name in the design community and therefore had a protectable commercial interest in her identity.  But because discovery wasn’t complete on the damages issue, it was premature for the Court to enter summary judgment for either party on the false association count.

Update: On March 3, 2014, the Court granted defendants’ summary judgment motion on Plaintiff’s false association claim.  Plaintiff’s Stored Communications Act claim survived summary judgment and the parties are going to trial on that count.

Plaintiff’s Stored Communications Act (SCA) claim also survived summary judgment because of unresolved fact disputes.  A Federal statute aimed at protecting against computer hackers, the SCA creates a private cause of action against a defendant who intentionally accesses (either without authorization or after exceeding authorization) and  alters or obtains plaintiff’s stored electronic communications (e-mail, e.g.).  Maremont, *5, 18 U.S.C. § 2701.

Plaintiff established that her Twitter and Facebook accounts belonged to her even though she signed up for both accounts at defendants’ office and on its computer equipment.  Since defendants clearly were able to access and send promotional tweets and Facebook messages from plaintiff’s personal accounts, there was a triable fact question as to whether defendants exceeded their authority to access those accounts.

In her state law right to publicity count, plaintiff asserted that the design firm  – by sending marketing messages from plaintiff’s social media accounts – used plaintiff’s likeness to promote defendants’ business.  A statutory publicity act claim requires a plaintiff to plead and prove (1) an appropriation of one’s name or likeness; (2) without written consent; (3) for another’s commercial benefit.  765 ILCS 1075/60; Maremont, *6.  Plaintiff’s right of publicity claim failed because she couldn’t establish element (1): that defendants pretended to be plaintiff when they sent messages from plaintiff’s Twitter and Facebook accounts.  Defendants clearly made it known that plaintiff was injured and that defendants, not plaintiff, were sending the promotional electronic missives.  Maremont, *7.  As a result, since defendants weren’t passing themselves off as plaintiff when they sent the messages, the defendants didn’t misappropriate plaintiff’s identity or likeness.

Defendants also defeated plaintiff’s intrusion on seclusion claim.  A species of the right to privacy tort, an actionable intrusion on seclusion claim requires a plaintiff to show (1) an unauthorized intrusion into seclusion; (2) intrusion that is highly offensive to a reasonable person; (3) the matter intruded upon was private; and (4) the intrusion caused the plaintiff anguish and suffering.  The plaintiff must also demonstrate that she attempted to keep private facts private.  And if something is displayed openly, there is no reasonable expectation of privacy under the law.  Maremont, *7.

Here, because plaintiff had so many Twitter (more than 1,200) and Facebook followers and frequently invited her followers to visit the design firm’s website and also linked to the firm’s public site and blog, the Court found that plaintiff didn’t try to keep any facts private.  Since plaintiff couldn’t point to any private information which defendants intruded on, the intrusion on seclusion claim failed.  Maremont, *7.

Afterwords: According to PACER, the Federal court public access portal, the case is still going.  Defendants have now moved five separate times for summary judgment.  Substantively, the case is relevant because it posits that a Twitter account is property of the individual account holder even though it was opened on employer premises and using employer equipment.  Maremont also demonstrates that a party’s commercial interest in her name and reputation and her private electronic communications are legally protectable interests under Federal and state law.