In this appeal, we must decide whether surveillance equipment secretly installed in a bathroom can support a claim for invasion of privacy when the equipment could not be operated after it was discovered to produce identifiable images. The district court determined evidence of an actual, rather than attempted, intrusion was required and granted summary judgment for the defendant after concluding the evidence was insufficient to sustain the plaintiffs claim. The court of appeals reversed, finding the evidence of intrusion was sufficient to survive summary judgment. On our review, we affirm the decision of the court of appeals, reverse the decision of the district court, and remand for further proceedings.
I. Background Facts and Proceedings.
Robert Speirs was an insurance agent for an insurance company. He operated his business from an office building in Waterloo. He employed Sara Koeppel and Deanna Miller to assist him in his business.
The office included a reception area occupied by Koeppel and Miller, an office occupied by Speirs, and a small unisex bathroom. The bathroom contained a sink, toilet, and black floor shelf. The shelf had a hollow rectangular base and was positioned between the sink and the toilet.
In October 2005, Speirs noticed Miller’s work performance had deteriorated. He began to suspect she was engaged in conduct detrimental to the operation of his office. In response, Speirs decided to monitor Miller’s activities at work using a hidden camera.
On November 26, 2005, Speirs purchased a security camera, monitor, videocassette recorder (VCR), and video tape. The camera was powered by a nine-volt battery and functioned independently of the receiver and monitor. When the camera was switched on, it would send radio wave signals to the receiver corresponding to the images captured by the camera. The receiver, in turn, sent the images to the monitor for viewing. The receiver, monitor, and VCR were located in Speirs’ office. The battery only had a lifespan of a few hours.
Speirs claimed that, on December 10, he installed the camera in the reception area of the office to monitor Miller’s work station. As a result, he was able to observe the reception area from the monitor in his office. He had no difficulty observing Miller when the equipment was in operation. However, he did not observe any misconduct by Miller and removed the camera from the reception area after approximately ten days. He claimed he was never able to record the camera images with the VCR.
On December 26, Speirs claimed he found a hypodermic needle in the office parking lot near the spot Miller parked her car. As a result, he installed the camera inside the hollow base of the shelf in the bathroom. He claimed, however, the equipment did not operate after he placed the camera in the bathroom. Instead, he claimed the monitor in his office produced only static or, at other times, displayed a “no signal” message. After unsuccessfully working with the equipment to produce a picture on the monitor, Speirs claimed he unhooked the monitor and receiver and put them in his desk drawer. Nevertheless, he left the camera in the bathroom and claimed he intended to re
The next day, Koeppel discovered the camera in the bathroom. She took photographs of the scene and reported her discovery to the police. The photographs showed the camera angle pointing towards the toilet in the bathroom.
The police investigation uncovered the monitor and receiver located in Speirs’ office. The camera was found in the bathroom but was inoperable due to a dead battery. The investigating officers replaced the battery in the camera, assembled the equipment, and attempted to operate the monitoring system. They eventually observed a “snowy, grainy, foggy” image on the screen of either the legs or arms of the investigating officer who was inside the bathroom. This image appeared only briefly before the monitor displayed a “no signal” message.
Koeppel filed a claim for damages against Speirs and the insurance company. The petition alleged invasion of privacy and sexual harassment. Miller filed a separate action against Speirs and the insurance company based on the same claims. The district court eventually dismissed the insurance company as a defendant in the lawsuit because it found Speirs was an independent contractor rather than an employee. It also granted summary judgment for Speirs on the sexual harassment claim because Speirs, as an employer of less than four people, was not subject to liability under Iowa Code section 216.6 (2005).
Speirs also moved for summary judgment on the invasion-of-privacy claim. He claimed the camera did not constitute an intrusion as a matter of law because it did not actually allow him to view or record Koeppel and Miller. Koeppel claimed she produced sufficient evidence of an invasion because Speirs placed the camera in the bathroom with the intent to view her and the camera was operable. The facts to support and resist the summary judgment have been recited as the background facts of this appeal.
The district court granted Speirs’ motion for summary judgment on the invasion-of-privacy claim. The court reasoned that, although Speirs intended to view Ko-eppel in the bathroom, the tort of invasion of privacy required proof the equipment had worked and Speirs had viewed the plaintiffs. It concluded the standard required an actual, as opposed to attempted, intrusion.
Koeppel appealed both summary judgment rulings. The court of appeals affirmed the district court’s order granting summary judgment in favor of Speirs on the issue of sexual harassment, but reversed the ruling in favor of Speirs on the invasion-of-privacy claim. The court of appeals concluded the evidence indicating the camera was operational in the bathroom was sufficient to survive summary judgment on the issue of invasion of privacy. Speirs requested, and we granted, further review on the issue involving invasion of privacy.
II. Standard of Review.
We review a district court’s ruling on summary judgment for errors at law. Iowa R.App. P. 6.907. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. r. 1.981(3); Kistler v. City of Perry,
The case before us presents an issue of first impression pertaining to the quantum of proof necessary to establish an intrusion under the “unreasonable intrusion upon the seclusion of another” prong of the invasion-of-privacy tort. This issue necessarily requires us to develop a standard for the jury to apply in determining when electronic devices intrude into privacy. Courts of other jurisdictions have reached conflicting conclusions. Daniel P. O’Gor-man, Looking Out for Your Employees: Employers’ Surreptitious Physical Surveillance of Employees and the Tort of Invasion of Privacy, 85 Neb. L. Rev. 212, 228 (2006). The conflict originates with the fundamental nature of the tort. Id. Thus, we begin by reviewing the underlying policy of the cause of action.
A. Invasion of Privacy. In general, the American view of privacy “exemplifies the possessive and territorial view of privacy” by aligning tort policy with the right of the owner to dispose of privacy as the owner wishes. Lawrence E. Roth-stein, Privacy or Dignity?: Electronic Monitoring in the Workplace, 19 N.Y. L. Sch. J. Int’l & Comp. L. 379, 381-82 (2000). Conduct that intrudes on privacy gives rise to liability because it can cause a reasonable person “mental suffering, shame, or humiliation” inconsistent with the general rules of civility and personal autonomy recognized in our society. Comment, The Emerging Tort of Intrusion, 55 Iowa L. Rev. 718, 719 (1970) [hereinafter Comment]; see also Pauline T. Kim, Privacy Rights, Public Policy, and the Employment Relationship, 57 Ohio St. L.J. 671, 691-92 (1996) (“The common law [violation for intrusion upon seclusion], however, is only concerned with the most serious of these territorial violations, those which threaten an individual’s identity by withdrawing the deference normally afforded a member of the community.”). The importance of privacy has long been considered central to our western notions of freedom:
[A] measure of personal isolation and personal control over the conditions of [privacy’s] abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A man whose home may be entered at the will of another, whose conversations may be overheard at the will of another, whose marital and familial intimacies may be overseen at the will of another, is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant.
Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 973-74 (1964).
Importantly, the cause of action for invasion of privacy imposes liability based on a particular method of obtaining information, not the content of the information obtained, or even the use put to the information by the intruder following the intrusion. Comment at 720; see also 1 J. Thomas McCarthy, The Rights of Publicity and Privacy § 5:87, at 5-178.2 (2d ed. 2003). Thus, proof that information obtained through an intrusion has been distributed to third parties is not required. See Charles Fried, Privacy, 77 Yale L.J. 475, 493 (1968) (recognizing that privacy is the legal right to control the disclosure of information).
Invasion of privacy developed from “the common law to fill a need for the protection of the interest which a person has in living without unwarranted publicity.” Bremmer v. Journal-Tribune Publ’g Co.,
We first recognized a cause of action for invasion of privacy in 1956. Bremmer,
The Restatement (Second) of Torts does not provide a specific definition of “intrusion.” However, it does give several examples of facts that support a finding of an intrusion. These examples include a newspaper reporter taking the photograph of a woman sick with a rare disease in a hospital room and a private detective in an adjacent building taking intimate photos of activities within another’s bedroom. Restatement (Second) of Torts § 652B illus. 1, 2, at 379. Additionally, an invasion occurs when a private detective taps another person’s telephone and installs a recording device. Id. § 652B illus. 3, at 379.
In this case, the parties do not dispute that placing a camera in a bathroom would be highly objectionable to a reasonable person, nor do they dispute that a bathroom is a place where a reasonable person expects to be left alone. Instead, the parties disagree about the proof necessary to show the act of intrusion occurred. Koep-pel primarily argues the installation of the camera in the bathroom with the intent to view is sufficient. Speirs argues the element of “intrusion” requires proof of an actual viewing at the time the activities in private took place or a recording that could be viewed at a later time. In other words, Speirs claims he could not be liable for his conduct if the camera could not function to produce an image. We proceed to resolve this dispute by examining the facts in light of the policy underlying the cause of action.
Courts across the nation are divided on the question whether a person can intrude without actually viewing or recording the victim. Some courts conclude the installation of surveillance equipment in a private place is sufficient to show an intrusion. The seminal case representing this view is Hamberger v. Eastman,
Other courts followed the Hamberger approach in a variety of contexts. In Amati v. City of Woodstock,
Other courts have similarly focused on the potential for viewing created by the defendant’s actions in framing the interest protected by that tort. See Harkey v. Abate,
Similarly, in Johnson v. Allen,
On the other hand, other courts have adopted a standard of intrusion requiring a defendant either see or hear another person’s private activities. See Meche v. Wal-Mart Stores, Inc.,
In deciding a standard for Iowa, we think it is important to keep in mind that the tort protects against acts that interfere with a person’s mental well-being by intentionally exposing the person in an area cloaked with privacy. See William L. Prosser, Privacy, 48 Cal. L. Rev. 883, 392 (1960) [hereinafter Prosser]. The point of disagreement among courts across the nation essentially boils down to whether the harm sought to be remedied by the tort is caused by accessing information from the plaintiff in a private place or by placing mechanisms in a private place that are capable of doing so at the hand of the defendant. Both perspectives clearly have support in other jurisdictions. However, we find the approach taken in Hamberger and its progeny is more consistent with the spirit and purpose of the protection of privacy. The secret use of an electronic listening or recording device is abhorrent to the interests sought to be protected by the tort. Amati,
We recognize this case is complicated by evidence that the camera could not be configured and operated after it was discovered to capture images from the bathroom and transmit them to the monitor and recorder in the office and by Speirs’ claim that he was never able to use the equipment to actually see into the bathroom. This evidence also adds challenges to establishing the legal standard for the fact finder to apply to resolve the case.
It would be inconsistent with the policy of the tort to find an intrusion when the privacy of the plaintiff could not have been exposed in any way. Thus, a belief by a plaintiff that a person invaded his or her privacy by placing an apparent recording device in a private area does not establish an intrusion if the device was not capable of being configured or operated to transmit or record in any conceivable way. Accordingly, proof the equipment is functional is an ingredient in the inquiry. Indeed, the very purpose of the tort is to protect the opening up of a private place where the plaintiff seeks seclusion. Pros-ser,
In this case, Speirs presented evidence tending to dispute Koeppel’s claim the battery-operated camera could have functioned at any time when she was in the bathroom. This evidence tended to show the camera did not send a strong enough signal to Speirs’ office that would have exposed her privacy. Yet, Koeppel submitted evidence that the camera was capable of working when a fresh battery was in place. Under the standard we adopt in this case, a reasonable fact finder could conclude the camera was capable of exposing the plaintiffs activities in the bathroom. Importantly, there was evidence the camera was capable of operation, and there was evidence it operated in the past from a different location in the office. This evidence meets the standard and would lead a reasonable person to believe his or her privacy had been invaded.
Speirs argues that a standard of intrusion that does not require evidence that the camera actually functioned to record an image essentially creates a tort of attempted invasion of privacy. We disagree. We recognize attempted conduct normally does not give rise to an intentional tort because the required element of actual harm does not occur. See Anthony J. Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell, 64 Md. L. Rev. 541, 565 (2005) [hereinafter Se-bok], It is axiomatic that there can be no tort if there is no injury. See United States v. Stefonek,
In light of the policies underlying intrusion upon seclusion and our prior holdings, we conclude the district court erred in granting Speirs’ motion for summary judgment. An electronic invasion occurs under the intrusion on solitude or seclusion component of the tort of invasion of privacy when the plaintiff establishes by a preponderance of evidence that the electronic device or equipment used by a defendant could have invaded privacy in some way.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
Notes
. While a physical intrusion is easily understood to violate the right to privacy, the tort has obviously expanded into a variety of nonphysical intrusions largely brought on by voyeuristic desires facilitated by changing technology. The topic has given rise to much legal commentary, including an article recognized as having one of the most clever titles for a law review note on the topic, Bill Prew-itt, Note, The Crimination of Peeping Toms and Other Men of Vision, 5 Ark. L. Rev. 388 (1951). W. Page Keeton et al., Prosser and
. Even though the act of intentionally placing an inoperable camera or recording device into a private area may not support the intrusion element of invasion of privacy, it could give rise to the tort of intentional infliction of emotional distress.