Maine’s Privacy Law: Intrusion upon Seclusion—Key Elements and Recent Developments

Maine, like most states, recognizes four fundamental common-law privacy torts: intrusion, appropriation, false light, and public disclosure. This article summarizes the tort of intrusion, sometimes called intrusion upon the seclusion of another.

Elements Required for an Intrusion Claim in Maine

To sue for intrusion under Maine law, a plaintiff must prove two distinct elements:

• The defendant must have intentionally intruded upon the solitude or seclusion of the plaintiff in their private affairs.
• The intrusion must be highly offensive to a reasonable person.

The Role of Intentionality in Intrusion Claims

Maine’s Supreme Judicial Court considered the intentionality element of intrusion in the 2012 decision, Lougee Conservancy v. Citimortgage, Inc. In that case, a bank mistakenly entered and photographed the wrong house during foreclosure proceedings. Because the bank’s error was in good faith, the court held that its intrusion was not intentional: the bank “might have been negligent or even reckless, but there is no evidence to support a finding of intentionality.” As a result, the plaintiff failed to state a claim for intrusion.

No Requirement for Plaintiff’s Ownership of Premises

Maine law does not require plaintiffs to own the space that was intruded upon. For example, Maine courts have sustained intrusion claims where medical patients were photographed without their consent in their hospital rooms.

Physical and Electronic Entry under Maine Law

Historically, Maine courts have required that the defendant physically enter the premises in question to sustain an intrusion claim. In the leading case, Nelson v. Maine Times (1977), the Maine Supreme Judicial Court dismissed an intrusion claim because the act did not involve a physical intrusion onto private property. The defendant, a newspaper, published a photograph of an infant plaintiff in a pastoral riverside setting. Because the photograph was taken outdoors, with no allegation that the photographer entered a secluded place to take it, the court found no intrusion. The court contrasted that case with one of its earlier decisions, which sustained an intrusion claim where the defendant had entered a plaintiff’s hospital room to take photos without permission.

By and large, Maine courts, since Nelson, have not allowed intrusion claims without allegations of physical intrusion on property. A 2023 federal case noted that “although ‘Nelson suggests that intrusion can occur by non-physical means, more recent… cases have required a ‘physical’ intrusion,’ and ‘It is doubtful whether contacting an individual by Facebook constitutes the required physical intrusion.”

But the tendency to require physical intrusion is not an absolute rule. At least one recent case allowed a case based on electronic intrusion. In Thayer v. Reed, a 2011 federal case, the defendant was a former executive of the plaintiff company. The defendant had surreptitiously read emails between the plaintiff’s attorney and another employee of the plaintiff. The court cited commentary to the Restatement (Second) of Torts, which outlines scenarios in which accessing a person’s mail and tapping their telephone can support an intrusion claim. Based on that commentary, the court held that the alleged “misappropriation of private emails” stated a claim for intrusion.

For more information about privacy laws and technology transactions, please contact Adam Nyhan.

Adam Nyhan is Co-Chair of Verrill’s Data Privacy and Security practice and a Partner in Verrill’s Intellectual Property group. He advises software, FinTech, AdTech, and other companies on privacy and Artificial Intelligence issues in compliance, licensing, B2B negotiations, and venture capital and M&A deals.