Facts: Unauthorized Recordings & Cell Phone access
Husband and Wife began dating when they were teenagers. Before they married, Wife opened an art gallery. Husband occasionally worked for the art gallery.
Husband suspected Wife of cheating on him with an artist and accessed her cell phone while she was sleeping to take photographs of text messages between her and the artist.
Additionally, Husband put a digital recording device in Wife's car and also started recording conversations between the two of them. Husband kept a log of the recordings and of Wife's daily activities. When Wife discovered the log, it was 150 pages. Wife filed for divorce.
During the divorce proceedings, Wife produced a general ledger from the gallery for use during mediation and to allow Husband to value the business. A confidentiality order was in place during the proceedings but was later vacated.
After the divorce was final, Husband began "waging a public campaign to disparage" Wife and the art gallery and to interfere with the gallery's business. Wife and the art gallery filed claims against Husband based on violations of the Texas Uniform Trade Secrets Act, the Interception of Communications Act (ICA), the Texas Theft Liability Act, and the Harmful Access by Computer Act (HACA); tortious interference, defamation, invasion of privacy, and intentional infliction of emotional distress. The trial court granted Wife and the gallery a temporary inunction. Husband appealed the injunction, arguing it included an unconstitutional prior restraint against disparaging the art gallery and that the Wife and the gallery failed to show they were entitled to a temporary injunction, including establishing a probable right to recovery under the ICA and HACA.
Holding: Affirmed as Modified
Opinion: The remedy for defamation is an award of damages, not the prevention of the right to speak freely. Injunctive relief in defamation or business disparagement actions may be permissible only when essential to the avoidance of an impending danger, and when it is the least restrictive means. Here, there was no evidence that Husband's speech presented any impending danger.
To obtain temporary injunctive relief, Wife and the gallery were required to show a probable right to recover; the were not required to establish that they would prevail at final trial.
Husband argued that he did not violate the ICA because he - a party to the communication - consented to the recordings between himself and Wife. A common law right to privacy exists under Texas law, and no authority suggests that this right is limited to unmarried individuals. A spouse's actions, whether personally or through an agent, in making a surreptitious recording of the other spouse, who believes she is in a state of complete privacy, could be an invasion of privacy. Further, nothing in the ICA precludes a common law claim for invasion of privacy for communications not covered by the ICA.
Husband asserted that taking photographs of Wife's phone did not qualify as "access" under the HACA, and that even if it did, he had effective consent because the phone was community property. "Access" includes making use of any resource of a computer. Neither party disputed that the phone qualified as a "computer." Husband "accessed" the data on the phone by retrieving the text messages for the purpose of photographing them.
Further, the HACA does not incorporate community property for the purpose of establishing ownershipl. Rather, it defines an "owner" as a person with a greater right of possession and the right to restrict access to the property. Wife has a superior right of possession to the phone as it was the "only way to reach" her, she used it on a daily basis, and she had the right to place a password on the phone.
Comments: Here is why I think this case is important.
This is an expansion of the Apple/FBI case that has been all over the news. This case is directly applicable to people living in our area because it is out of the DALLAS appeals court. The Court is sending us a message loud and clear that it is not going to stand for people invading other people's privacy. This was a family law case, but the cases are lined up across the board on the criminal side as well.