IUS - Prong 3

What is Element 3 of IUS?

Highly Offensive to a Reasonable Person (HORP)

HORP: Overarching Rule?

The intrusion must be OUTRAGEOUS and EGREGIOUS — not just annoying. Shocking and intolerable to an ordinary member of society.

What are the factors to analyze?

Berosini factors:

1. Degree of Intrusion

2. Context, Conduct, & Circumstances

3. Intruder’s Motive/Objective

Degree of Intrusion: Rule

Determine the level of interference/commotion with what P is doing. (silent filming vs disruptive film crew)

Context, Conduct, Circumstances: Rule

Taking advantage of P’s vulnerability and confusion.

EOP? Is it a place traditionally associated with legitimate EOP (expectation of privacy)? (backstage area vs dressing room)

Intruder's Motive/Objective: Rule

Did D want to expose P’s bad behavior? (exposing animal abuse vs eavesdropping)

Is it HORP to film an injured person suffering at an accident scene?

Yes

Is it HORP to intercept and record private conversations with an injured patient?

Yes

Is it HORP to secretly record an emotionally stressful conversation?

Yes

Is it HORP to take a single picture through actress’s window?

No

IUS Policy Considerations?

• Regulates intrusive information gathering

• Protect private sanctuaries

• First Amendment and newsworthiness are not defenses