Dietemann v. Time, Inc.
Decision Date | 23 August 1971 |
Docket Number | No. 23096.,23096. |
Citation | 449 F.2d 245 |
Parties | A. A. DIETEMANN, Appellee, v. TIME, INC., a New York corporation, Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Bennett W. Priest (argued), Allyn O. Kreps, of O'Melveny & Myers, Los Angeles, Cal., for appellant.
Paul M. Posner (argued), A. L. Wirin, Los Angeles, Cal., for appellee.
Before CARTER and HUFSTEDLER, Circuit Judges, and VON DER HEYDT,* District Judge.
This is an appeal from a judgment for plaintiff in an action for invasion of privacy. Jurisdiction was grounded in diversity. The parties agreed that California law governed. After a court trial plaintiff was awarded $1000 general damages. On appeal we are asked to consider significant questions involving the relationship between personal privacy and the freedom of the press.
The district court's decision is reported in Dietemann v. Time, Inc., 284 F. Supp. 925 (1968). The facts, as narrated by the district court, are these:
The district court concluded: The court awarded $1,000 general damages "for injury to Dietemann's feelings and peace of mind. Time appeals from that decision.
The appeal presents three ultimate issues: (1) Under California law, is a cause of action for invasion of privacy established upon proof that defendant's employees, by subterfuge, gained entrance to the office portion of plaintiff's home wherein they photographed him and electronically recorded and transmitted to third persons his conversation without his consent as a result of which he suffered emotional distress? (2) Does the First Amendment insulate defendant from liability for invasion of privacy because defendant's employees did those acts for the purpose of gathering material for a magazine story and a story was thereafter published utilizing some of the material thus gathered? (3) Were the defendant's employees acting as special agents of the police and, if so, did their acts violate the First, Fourth, and Fourteenth Amendments of the Federal Constitution, thereby subjecting defendant to liability under the Civil Rights Act (42 U.S.C. § 1983)?1 Because we hold that plaintiff proved a cause of action under California law and that the First Amendment does not insulate the defendant from liability, we do not reach the third issue.
Were it necessary to reach the Civil Rights Act questions, we would be obliged to explore the relationship between the defendant's employees and the police for the purpose of ascertaining the existence of the "color of law" element of the Act. Because we do not reach the issue, we can and do accept the defendant's disclaimer that its employees were acting for or on behalf of the police.
In jurisdictions other than California in which a common law tort for invasion of privacy is recognized, it has been consistently held that surreptitious electronic recording of a plaintiff's conversation causing him emotional distress is actionable. Despite some variations in the description and the labels applied to the tort, there is agreement that publication is not a necessary element of the tort, that the existence of a technical trespass is immaterial, and that proof of special damages is not required. (E.g., Nader v. General Motors Corp. (1970) 25 N.Y.2d 560, 307 N.Y.S.2d 647, 255 N.E.2d 765 (applying District of Columbia law); Hamberger v. Eastman (1964) 106 N.H. 107, 206 A.2d 239; Roach v. Harper (1958) 143 W.Va. 869, 105 S.E.2d 564; McDaniel v. Atlanta Coca-Cola Bottling Co. (1939) 60 Ga. App. 92, 2 S.E.2d 810; cf. Pearson v. Dodd, 133 U.S.App.D.C. 279; 410 F.2d 701, cert denied (1969) 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465).
Although the issue has not been squarely decided in California, we have little difficulty in concluding that clandestine photography of the plaintiff in his den and the recordation and transmission of his conversation without his consent resulting in his emotional distress warrants recovery for invasion of privacy in California.1a California began developing a common law privacy tort in 1931 with the decision of Melvin v. Reid, 112 Cal.App. 285, 297 P. 91. Since then, the California Supreme Court has decided a number of privacy cases in some of which there are indications that California would recognize the plaintiff's claim.
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