Trespass Claim Reinstated, Privacy Claim Rejected Against Google “Street View”
April 2, 2010
Charles D. "Chuck" Tobin- Washington
A federal appeals court has reinstated a trespass claim brought by a Pittsburgh couple unhappy at having a photo of their home included on “Street View” feature. The three-judge panel, however, agreed that the photos depicted nothing that invaded the couple’s privacy.
Street View is a service launched two years ago on which Google posts 360-degree views at the street level of many U.S. cities. The pages permit visitors to take virtual walks through neighborhoods. The pages are created with images generated by Google drivers who pass through neighborhoods with digital panoramic cameras.
Aaron and Christine Boring, who live on a private road in an upscale Pittsburgh suburb, sued Google alleging that the photos were taken without permission from their driveway. Their complaint, filed in the U.S. District Court in the Western District of Pennsylvania, alleged that the unpaved road they live on is posted with “Private Road” and “No Trespassing” signs. They sued Google for invasion of privacy and trespass, claiming Google violated their rights by driving up their street to take the photographs.
The district court had dismissed each of the Borings’ claims, finding that as to the privacy claims, the photographs would not be offensive to a person of ordinary sensibilities. The district court dismissed the trespass claim on grounds that the Borings had not alleged damages recoverable under that tort.
The U.S. Third Circuit Court of Appeals agreed with the district court as to the privacy claim. Rejecting the Borings’ arguments that their sensibilities are a factual and not a legal issue, the appellate court specifically noted that reasonable offensiveness is typically a question for the court, not the jury, in the first instance.
The appeals court, however, reversed the district court as to the trespass claim. Noting that the district court’s “skepticism about the claim may be understandable,” the appellate court nonetheless held the dismissal was erroneous, because under Pennsylvania law, damages are not an element of a trespass claim. According to the court: “Here, the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple. There is no requirement in Pennsylvania law that damages be pled, either nominal or consequential.”
The appeals court therefore ordered that the Borings’ trespass claim go forward – but not without a hint of skepticism of its own: “Of course, it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day.”
Finally, the appellate court upheld the denial of the couple’s request for an injunction to order Google to remove the pictures from its site. The court observed that Google has “long since” taken down the photos.
For background information on this topic, see:
Google “Street View” Privacy and Trespass Claims Dismissed in the
Media and Communications Newsletter, Spring/Summer 2009.
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