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Audio recording not invasion of privacy

By: dmc-admin//May 17, 2010//

Audio recording not invasion of privacy

By: dmc-admin//May 17, 2010//

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Merely recording the neighbors with an audio recorder placed on one’s own property is not invasion of privacy, the Wisconsin Court of Appeals held on May 4.

Because it reached that holding, though, the court declined to address several other significant issues regarding invasion of privacy, including the appropriate jury instructions and special verdict form.

Karen and Barry Poston were neighbors of Andrea L. Burns and James D. Barr in West Allis, with homes 18 feet apart. The relationship was not a friendly one.

Ultimately Burns and Barr made a series of audio recordings of the Postons and then provided them to the police to substantiate complaints of excessive noise. Karen Poston and a friend were issued tickets for disorderly conduct based on the recordings.

The Postons then moved to another community and filed an invasion of privacy suit against Burns and Barr, pursuant to sec. 995.50(2). The trial court denied Burns’ and Barr’s motion for summary judgment, and for a directed verdict.

In a three-part special verdict form, the jury found that Burns and Barr did invade the Poston’s privacy, and that it was not done in good faith, but awarded no damages except for the Postons’ litigation expenses.

The trial court awarded more than $41,000 in attorney fees and costs, and Burns and Barr appealed. The Court of Appeals reversed in an opinion by Judge Joan Kessler.

The Court of Appeals concluded that the circuit court erred in not granting Burns and Barr’s motion for summary judgment, and later, directed verdict. At issue was an argument by the Postons that Burns and Barr could not have made the recordings using only a $50 recorder placed in their own window.

The Postons argued that they must have used more sophisticated equipment, but offered no expert testimony to that effect.

The court therefore concluded, “There was no competent evidence to support that argument. The Postons, as lay witnesses, established no competency to testify about the recording capabilities of digital recorders or microphones, or other rational basis for the ‘belief’ they expressed and which formed the factual basis for their case.”

The court further found that the admission of the Postons’ lay testimony about the technical capacity of the recorder led the jury to engage in unfounded speculation.

Thus, the only competent evidence in the record on the issue was the testimony of Burns and Barr that they merely placed a handheld digital recorder on the window will of their bedroom attached to a microphone placed between the window and the window screen.

The court concluded this was insufficient to support a claim for invasion of privacy.

Case analysis

While the court only addressed whether the evidence supported the verdict, the case presented three other issues the court did not decide.

However, it did provide dicta that could provide guidance in future invasion of privacy cases with respect to the jury instructions and special verdict form.

There are no standard jury instructions for invasion of privacy, prompting a dispute before the trial court on the issue.

Barr and Burns argued that the instructions and special verdict form should track the language of sec. 995.50(2)(a), which defines invasion of privacy as “Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.”

Instead, the trial court instructed the jury, “Every person in Wisconsin has a right to privacy. The Plaintiffs allege the Defendants … invaded their privacy by audio taping conversations and other sounds emanating from their property.”

The first question of the special verdict form asked, “Did Andrea Burns and James Barr invade the privacy of Karen and Barry Poston by recording conversations and other sounds emanating from the Poston’s property?”

Burns and Barr argued that the instructions and verdict form were incorrect, because there is no reasonable expectation of privacy in sounds emanating from property.

The Court of Appeals declined to address the issue, because it was unnecessary given its holding on the directed verdict issue. In a footnote, however, the court suggested that special verdict question was improper. The court wrote, “we note that we share some of the Burns-Barrs’ concerns, and this opinion should not be read as implicitly approving the special verdict form that was used.”

In contrast, the final paragraph of the court’s opinion could be read as implicitly approving the argument that the verdict form should track the language of sec. 995.50(2)(a).

The court wrote, “The recording of sounds emanating from the Postons’ home using a common recording device that was placed inside the Burns-Barrs’ own window was not, as a matter of law, an intrusion ‘of a nature highly offensive to a reasonable person.’”

Since this is how the court framed the issue for directed verdict purposes, it could be read as an implicit suggestion that special verdict forms should frame the issue in the same way.

Another issue the parties briefed, but which the court did not address, is whether the attorney fee award was proper, when the jury awarded no other damages.

The attorneys on both sides of the case ably briefed the issue, and either brief would provide an excellent blueprint for attorneys arguing the respective sides of the issue.

Also well-briefed by the attorneys is the issue whether statutory interest can accrue on attorney fees when no compensatory damages were awarded.

David Ziemer can be reached at [email protected].

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