Illinois Supreme Court Recognizes Privacy Tort And Holds Employer Liable Under Agency Law

On October 18, 2012, the Illinois Supreme Court delivered a very important decision for Illinois employers in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012). The court not only confirmed that the tort of intrusion upon seclusion is recognized in Illinois, it also applied principles of agency law to find an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer's agent.

Intrusion Upon Seclusion

The formal recognition of the tort of intrusion upon seclusion by the Illinois Supreme Court was expected as each of the state's appellate districts had previously recognized the tort. Still, while the tort was discussed in Lovgren v. Citizens First National Bank of Princeton, 126 Ill. 2d 411 (1989), it had not, until Lawlor, been formally recognized by the state's highest court.1

In addition to recognizing the tort, the Illinois Supreme Court decision formalized the elements necessary to prove the tort of intrusion upon seclusion, citing to the Restatement (Second) of Torts:

Section 652B of the Restatement (Second) of Torts provides: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Restatement (Second) of Torts § 652B (1977). For purposes of illustration relevant to the facts in this case, comment b to section 652B of the Restatement provides, in pertinent part:

"b. The invasion may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the information outlined." Restatement (Second) of Torts § 652B cmt. b, at 378-79 (1977).

Turning specifically to the employment law arena, this decision confirms that Illinois plaintiffs' attorneys have another potential cause of action that may arise out of the employment relationship. Following on the heels of the new Illinois law protecting employees' privacy rights in regards to social media,2 the court's decision underscores the need for...