The Volokh Conspiracy
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Showing Plaintiffs' House in an Ad for Netflix Real Estate Reality Show Isn't Actionable Invasion of Privacy,
even if it leads people "to visit plaintiffs’ home 'on a daily basis' asking to see it and claiming they learned it was for sale through the Buying Beverly Hills advertisement."
Here are the factual allegations, as set forth in last week's long opinion by Justice Mark Hanasono, joined by Justice Anne Egerton, in Dinho v. Netflix, Inc.:
Plaintiffs' home is on a ridgeline in the Hollywood Hills. The property is guarded by a private gate and the home is not visible from any nearby street. The closest publicly accessible vantage point from which the home can be seen is 1,034 feet away….
Netflix began using a photo of plaintiffs' home in an advertisement for Buying Beverly Hills, one of its reality shows which depicts the operations of a real estate firm. The photo was taken by nonparty Ashwin Rao. Rao published the photo on Shutterstock.com (Shutterstock), "a website that allows any person with [I]nternet access to license photographs to the public for specific uses." Netflix hired Williams Creative Agency (WC+A) to produce the advertisement, and WC+A licensed the photo from Shutterstock for use in the advertisement.
Rao allegedly took the photo without [plaintiff] Dihno's knowledge or consent using a drone or other specialized photography equipment. The photo depicted interior and exterior details of the home not visible from any public location, including the "room layout" and the entrances and exits….
Netflix published the advertisement on its own website and on several other websites. Netflix did so without plaintiffs' knowledge or permission. Both Netflix and WC+A knew that the home was not associated with or depicted in Buying Beverly Hills….
[P]eople began to visit plaintiffs' home "on a daily basis" asking to see it and claiming they learned it was for sale through the Buying Beverly Hills advertisement. One woman rang the doorbell, demanded to enter the home, and refused to leave. Dihno called the police and the woman was arrested. Other people attempted to open plaintiffs' front gate and climb over their fence. [Plaintiffs] would only answer the doorbell for friends or relatives who provided advanced notice of their visit. In addition, [Plaintiffs] received calls "more than once daily" from real estate agents who sought to represent the family in selling the home.
Note that the ad apparently didn't include the address of the home, or the names of the owners. More from the allegations:
Plaintiffs' mental health and their reputations suffered. They had negative interactions with their neighbors, including one who "alienate[d]" them and another who "angrily confronted" them because the advertisement increased the number of unwanted visitors to the formerly quiet street. Plaintiffs did not feel safe in their home, could not sleep, and received medical treatment for insomnia and stress disorders. Out of fear for their own safety, plaintiffs spent approximately $20,000 on security measures. …
Plaintiffs sued, but the Court of Appeal ruled against them. In particular, it rejected plaintiffs' claim that defendants were responsible for invading plaintiffs privacy on an "intrusion upon seclusion" theory. The court concluded that, whether or not Rao had committed the tort in photographing the house, Netflix wasn't responsible for that, partly because plaintiffs didn't allege "that Netflix had full knowledge of Rao's conduct" and therefore couldn't be said to have endorsed "Rao's conduct." Nor could the ad be faulted for being "an 'extension' of Rao's intrusion": "the tort of intrusion," unlike the disclosure, false light, and appropriation torts, "does not create liability for publications."
And Netflix also wasn't liable for third parties' intrusions:
In support of this argument, plaintiffs rely on Vescovo v. New Way Enterprises, Ltd. (Cal. App. 1976). There, the defendant published a woman's address in a classified advertisement, accompanied by lewd language suggesting that the woman wished to engage in sex acts. More than 100 people trespassed at the property thereafter. The appellate court concluded that the woman's minor child could state a claim for "the physical intrusion by various unsavory characters on her own solitude in her own home" based on allegations that the "defendants published the advertisement 'with intent and design to injure, disgrace and aggrieve'" the child….. [But] Vescovo was published nearly 50 years ago, and some 22 years before Shulman v. Group W Productions, Inc. (1998), our Supreme Court's leading case on common law intrusion. As Shulman and its progeny now instruct, to establish an intrusion claim, plaintiffs must allege that "defendants 'intentionally intrude[d]'" upon their seclusion….
[And whether or not Vescovo survives Shulman,] Vescovo is distinguishable…. Unlike in Vescovo, the advertisement in this case depicted only the exterior of plaintiffs' house, not their address or any other personal information; and the advertisement did not encourage third parties to visit plaintiffs' home. And while the complaint alleges that Netflix intentionally published the advertisement with knowledge that it might harm plaintiffs, it does not allege that Netflix intended for third parties to harass plaintiffs….
Justice Egerton also added her views rejecting "appellants' proposal to expand—in my view, in a sweeping and unwarranted way—the intentional tort of intrusion":
[A]ppellants contend they "should have some right under the law to limit Netflix's exploitation of their home, life, and privacy." Appellants' claim that Netflix "exploit[ed]" "their home" sounds suspiciously like a proposed right of publicity for houses. For good reason, there is no such tort. As for the alleged "exploitation" of appellants' "life," the photograph at issue did not depict any of the appellants. It is simply a picture of a house. The advertisement did not mention appellants nor did it say anything negative about them….
Appellants' proposed expansion of liability for an intentional tort—they pray for compensatory damages of five million dollars in their privacy count, and for punitive as well as compensatory damages in three other causes of action—is breathtaking in its scope. Let's say the Los Angeles Times decides to do a piece on "five houses in Los Angeles that look like they came out of a fairy tale." You know—with those cute, curving brown roofs. People read the piece and think, "Wow, I'd like to see that." They drive by, or walk by, the houses. Maybe some even knock and ask to come inside. Let's say lots of people do that. Let's say the "publisher" of the piece is not the Los Angeles Times but an influencer on Instagram who's interested in architecture.
Can the owners or residents of those homes sue for intrusion? One can imagine myriad other examples….
Justice Lee Smalley Edmon dissented on these matters:
[A]t least a few cases have recognized claims for intrusion where defendants published information about the plaintiffs that caused third parties to intrude into their private spaces. The first such case was Kerby v. Hal Roach Studios, Inc. (Cal. App. 1942). The defendant in that case was a movie producer, and the plaintiff was an actress. To create interest in one of its movies, the defendant sent copies of a letter, which appeared to have been handwritten and signed by the plaintiff, to 1,000 men in Los Angeles. The letter said the plaintiff was " 'in the mood for fun'" and invited the recipients to meet her "'in front of Warners Downtown Theatre at 7th and Hill on Thursday'" for " 'an evening you won't forget.'" Although the letters did not include the plaintiff's address or phone number, the plaintiff alleged that both were listed in a public phone directory, and thus the letter resulted in a large number of phone calls and a visit to her home, including one call that led the plaintiff to fear being shot….
[The] Court of Appeal [allowed the case to go forward]: "'The right of privacy has been defined as the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. In short it is the right to be let alone.' … Here the plaintiff was, without her consent, plucked from her regular routine of life and thrust before the world, or at least 1,000 of its persons, as the author of a letter not written by her and of a nature to at least cast doubt on her moral character, and this was done in a manner to call down on her a train of highly undesirable consequences. This constituted as strong an invasion of the right of privacy as any of those described in the cases." The Court of Appeal reached a similar conclusion in Vescovo ….
Significantly, neither Kerby nor Vescovo concerned allegations that the defendants themselves physically intruded into the plaintiffs' homes or ratified intrusions by third parties. Instead, the essence of the claimed intrusions in those cases was the defendants' publication of information that created interest in the plaintiffs and led to foreseeable physical intrusions by third parties that significantly disturbed the plaintiffs' solitude. Under those circumstances, the courts found the plaintiffs had adequately alleged claims for intrusion. The present case is analogous….
I do not agree [that Vescovo is inconsistent with Shulman]. While it is true that Shulman requires an intentional intrusion by the defendant, it does not limit "intrusion" to a physical intrusion by a defendant. To the contrary, Shulman says that to state a claim for intrusion, a plaintiff must demonstrate that the defendant "'intentionally intrude[d], physically or otherwise, upon the solitude or seclusion of another,' that is, into a place or conversation private to" the plaintiff….
The majority also suggests that the present case is distinguishable from Vescovo because there the defendant published the plaintiffs' address and was alleged to have intended to "injure, disgrace and aggrieve" the plaintiffs, while here Netflix did not publish plaintiffs' address and is not alleged to have intended harassment by third parties. A specific intent to cause harm—as opposed to the intent to intrude—is not an element of a cause of action for intrusion, and thus I do not find this distinction material. Nor do I consider it relevant that Netflix did not publish plaintiffs' address. The plaintiff's address was not published in Kerby, but third parties nonetheless were able determine where the plaintiff lived because her name and address were listed in the telephone directory….
The dissent also added, perhaps in response to the concurrence, "Importantly, the photograph of plaintiffs' house was published in connection with an advertisement, not a news story. The present case thus does not raise the constitutional issues present in many privacy cases." The concurrence, on the other hand, reasoned, "Finally, that the photograph appeared in an advertisement does not strip it of constitutional protection. New York Times Co. v. Sullivan (1964)—the seminal First Amendment case—involved an advertisement." (Note that the Sullivan ad was a political ad, not a commercial ad for a TV show, as was the case here.)
The majority and dissent also disagreed on whether plaintiffs had adequately stated a claim for private nuisance, but I omit that for space reasons; I also omit the discussion of the false light claim, the negligent and intentional infliction of emotional distress claims, and a couple of statutory claims. You can read more about them in the full opinion.
Mark R. Yohalem and Madelyn Y. Chen (Wilson Sonsini Goodrich & Rosati) and Jonathan Segal, Rachel R. Goldberg, and Samantha Lachman (Davis Wright Tremaine) represent Netflix.
