Google Street View: a picture's worth $1 fine?

Law of the Land

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Dec. 15, 2010

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Law of the Land

Tara-Nicholle Nelson
Inman News™

Internet giant Google publicized images of a Pittsburgh, Pa., home owned by Aaron and Christine Boring on its Google Street View service that Google had snapped from the Borings' private road and driveway. To create Street Views, Google affixes digital cameras to automobiles and hires individuals to drive around and take photographs of streets worldwide.

Google advertises Street View, a free service, as extending only to public streets, and does have a button where users can report and request the removal of images.

The Borings filed suit against Google, claiming that because their road is visibly marked "Private Road, No Trespassing," by having their photographer drive up the road and by publishing the images, Google violated their privacy interests. Google removed the case to federal court, and on Google's motion, the court dismissed all of the Borings' claims.

The Borings filed an appeal to the Third Circuit Court of Appeal. The appellate court upheld the lower court's dismissal of the Borings' invasion of privacy, unjust enrichment, and their claim that they were entitled to punitive damages, but reversed the district court's dismissal of the Borings' trespassing claim.

The appeals court first examined and found insufficient the Borings' invasion of privacy claim. To make a claim for invasion of privacy under Pennsylvania law, the defendant's offensive behavior must have been so outrageous that a person of ordinary sensibilities would experience shame, humiliation or mental suffering as a result.

The images of the Borings' home's exterior obtained by Google was no more intrusive than the view that would be seen by a delivery person, and was even less intrusive than someone knocking on the door.

Accordingly, the Third Circuit agreed with the district court's conclusion that " 'a reasonable person would not be highly offended' after having discovered, as the Borings did, that someone 'entered onto secluded private property (and) took 360 (degree) pictures. ..."

The court rejected the Borings' unjust enrichment claim, on grounds that the Borings had neither any relationship with Google nor did they confer any benefit on Google that the Borings could reasonably expect to have been compensated for, as required to make an unjust enrichment claim under Pennsylvania law.

The Borings' claim for injunctive relief failed, the Third Circuit explained, because they neither alleged any continuing pattern of behavior by Google nor injury experienced as a result of Google's behavior.

Similarly, the court rejected their request for punitive damages, because punitive damages may only be based on conduct rising to the level of "outrageous," "intentional, reckless or malicious."

The Borings had made no allegations that Google was even aware that their photographer had entered their property, much less intentionally sent him there. Further, Google's behavior was limited to a single, brief entry onto the Borings' driveway -- there was nothing outrageous, reckless or malicious even alleged by the Borings.

However, the court did reverse the lower court's ruling rejecting the Borings' trespassing claim. A valid trespassing claim does not require the complainant to prove that they have suffered any damages, the court explained. It was sufficient, the court went on, that the Borings' alleged that Google entered their property without permission.

Accordingly, the Third Circuit Court of Appeals upheld the lower court's dismissal of all of the Borings' claims, with the exception of the trespass claim, which was sent back to the lower court for further proceedings.

Post-opinion update: On Dec. 2, 2010, the lower court signed off on a consent agreement under which Google admitted the trespass, and agreed to pay the Borings $1 in damages, reported the Associated Press.

Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Tara is also the Consumer Ambassador and Educator for real estate listings search site Trulia.com. Ask her a real estate question online or visit her website, www.rethinkrealestate.com.

                                                   
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