An Indiana court ruled that a private investigator who made secret surveillance videos during a worship service to “prove” that the pastor’s wife was not disabled did not commit an invasion of privacy or emotional distress.

Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.

* An Indiana court ruled that a private investigator who made secret surveillance videos during a worship service to "prove" that the pastor's wife was not disabled did not commit an invasion of privacy or emotional distress. Persons who receive disability benefits under an employer's plan are sometimes placed under surveillance by the disability insurance company to confirm that they are disabled. These surveillance activities may extend to church services, as a recent case in Indiana illustrates.

A pastor's wife (Sarah) was involved in a car accident and suffered serious injuries. She began receiving long term disability benefits under an insurance program maintained by her employer (a hospital). After making payments for a period of time, the employer determined that Sarah was no longer disabled and therefore it quit paying her benefits. Sarah asked for a review of this decision, and this prompted her employer to hire a private detective agency to conduct surveillance and videotape her activities. The purpose of this surveillance was to determine whether her activities were consistent with her disability determination.

A private investigator presented himself as a worshiper at Sarah's church during two worship services. Each time he wore a sling on his arm that concealed a video camera. He secretly videotaped Sarah as she played a piano. He also videotaped the pastor as he presided over the service.

Based on these videotapes, Sarah's employer rejected her request to have her disability payments reinstated. When Sarah and her husband later learned of the video surveillance of their church, they sued the employer for using improper means to deny Sarah's disability benefits. They later settled their claim against the employer, but they also sued the detective agency claiming that its activities amounted to an invasion of their privacy by "intruding upon their seclusion," and causing them emotional distress. They asserted that a church sanctuary is unlike any other public place because it is a place where people go to seek peace of mind, solitude and physical seclusion from the world's problems as they seek an intimate relationship with God. Therefore, they had a reasonable expectation of privacy, solitude, or seclusion within the bounds of their church worship service which was invaded by the investigator.

The court disagreed. It noted that the pastor and his wife were neither alone nor secluded when the videotaping occurred. The investigator videotaped them at scheduled church services that were open to the general public. There were no signs posted indicating that only church members or invitees could attend the services or stating that services could not be videotaped or could only be videotaped with church permission. Using a hidden camera, the investigator videotaped Sarah as she played the piano on stage in full view of the entire congregation of approximately 140 people. Similarly, he videotaped the pastor as he presided over the services, led prayer, preached sermons, and gave a benediction to the large gathering of worshipers …. While the pastor and his wife object to the covert videotaping, it simply captured activity that was open to the public, observed by many, and which the investigator or any other of the church attendees could have testified to witnessing at trial. Moreover, it is undisputed that the investigator confined his videotaped surveillance to areas of the church that were open to the public. Specifically, he videotaped as he entered the church, sat in a pew as part of the congregation, and exited the building. At no time did he film into any closed area or area not visible from the church entrance, aisles, or pews where he sat during the service. Under these circumstances, we conclude as a matter of law that the pastor and his wife had no reasonable expectation of privacy in their activities.

The court also rejected the emotional distress claim. It noted that intentional infliction of emotional distress requires proof of (1) "extreme and outrageous" conduct that (2) intentionally or recklessly (3) causes (4) severe emotional distress to another. The conduct "must exceed all bounds usually tolerated by a decent society and cause mental distress of a very serious kind." It is the kind of conduct that would "cause an average member of the community to exclaim, 'Outrageous!'" The pastor and his wife insisted that this standard was met, because the investigator's "secret spy videotaping of persons during their worship and prayer" was "below the line of decency" and outside the "collective societal norm of civilized conduct. The court disagreed, "Given the nature of this investigation it was necessary to employ covert, rather than overt, surveillance procedures. Moreover, while [the investigator] obtained the videotape footage in a devious manner, it is undisputed that videotaping was not prohibited during church services and that he simply filmed [the pastor and his wife] as they preached and performed, respectively, at an open service in full view of a large congregation. [The investigator's] conduct may be considered distasteful, [but] we nevertheless conclude as a matter of law that it did not rise to the level of outrage necessary to support a claim for intentional infliction of emotional distress." Creel v. I.C.E. & Associates, 771 N.E.2d 1276 (Ind. App. 2002).

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