APPEAL from the Circuit Court of Cook County; the Hon. ALLEN
HARTMAN, Judge presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Arlyn Cassidy (plaintiff) filed a two-count complaint seeking actual and punitive damages, as well as injunctive relief, from American Broadcasting Companies, Jay Levine, Don Ernst, Myron Renfrow and William Purdy (defendants). Count I alleged eavesdropping in violation of section 14-2 of the Illinois Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 14-2). Count II alleged invasion of plaintiff's right to privacy. Upon consideration of memoranda of law filed by the parties, discovery depositions and an affidavit by plaintiff, the court granted defendants' motion for summary judgment.
Plaintiff appeals. He contends defendants' actions constitute eavesdropping as defined in the Illinois Criminal Code; the complaint states a cause of action for invasion of privacy and any issue of consent is at best a disputed factual question. Defendants contend plaintiff has no cause of action for either eavesdropping or invasion of privacy and that, in view of the depositions and affidavit, plaintiff clearly consented to the filming complained of.
A review of the factual elements in the record is essential. In his deposition plaintiff stated that on November 6, 1975, he and several other Chicago police officers, acting as undercover agents, were assigned to investigate a massage parlor on the near north side of Chicago. During the preceding two days, this establishment had been the site of arrests premised upon solicitation and obscenities. The vice-control division of the police department provided plaintiff with $60 to cover the initial undercover investigatory activities. Plaintiff stated he paid $30 admission fee to see "de-luxe" lingerie modelling. He was taken to a small room by one of the models. (Room No. 1.) Upon entering the room he noticed "camera lights" on each side of the bed. He remarked to the model that the lights made the room quite warm. Plaintiff stated he then reclined on the bed and watched the model change her lingerie several times. He made several suggestive remarks and physical advances to her. He arrested the model for solicitation after she established "sufficient" physical contact with him. Three of the other undercover agents joined plaintiff and asked if anyone was in the room adjacent to the room in which plaintiff observed the model. (Room No. 2.) The door to Room No. 2 opened, someone cried out "Channel 7 News" and the camera crew exited filming the scene before them.
Plaintiff further stated that after he and the model were in the room for some 10 minutes, the model told him "they were taking movies." Plaintiff stated he did not believe the model's statement but waved his hands and pretended he was being filmed. During the deposition plaintiff was asked, "Were you planning to do anything that you would not want the public to see, hear or record?" He responded, "No."
Depositions were also taken of defendants Jay Levine, Don Ernst and Myron Renfrow; all admittedly part of the camera crew. Levine, the reporter, stated he and the other members of the crew reported to the massage parlor in response to a call from the manager of the parlor. He complained his establishment was the subject of police harassment. The film crew was taken to Room No. 2 where they installed a camera behind a two-way mirror which provided visual access to Room No. 1. Levine explained that as the film crew was only preparing a visual recording it was not necessary to place a microphone in Room No. 1, which was used by plaintiff and the model. No such instrument was ever placed in that room. However, as ABC company policy required "room presence," i.e. background sound, to facilitate the subsequent mixing and editing of sound and silent film clips, the crew placed a microphone in Room No. 2. All of the recording equipment was within Room No. 2. When Levine later viewed the film taken of the events in Room No. 1, he was unable to hear any distinguishable conversation. The microphone in Room No. 2 transmitted only a mixture of incomprehensible sounds.
All members of the film crew remained in Room No. 2 throughout the interaction between plaintiff and the model and filmed this event. Levine also testified that as plaintiff entered Room No. 1, plaintiff said, "What is this? Are we on camera? Are we on TV?" Levine explained that these remarks were made before the camera had been started for the filming.
Don Ernst, the sound technician, stated in his deposition that he was wearing earphones and had a portable amplifier around his neck. He placed a microphone on a shelf in Room No. 2 to record "room presence." He explained that it would have been possible to disconnect the amplifier and microphone from the camera and record only a visual sequence, but because of ABC policy requiring "room presence," he utilized the microphone. He noted that because of the street noises emanating through a window facing Wells Street in Room No. 2, as well as the whirring of the camera equipment and other miscellaneous noises, he was unable to hear any conversation occurring in Room No. 1. He stated the sounds he heard were "garbled," "distorted," and "almost unintelligible." Ernst recalled plaintiff stating as he entered Room No. 1, "What are we on, TV?" and the model responding, "Sure, we're making movies."
Myron Renfrow, the lighting technician, also recalled the plaintiff stating, "What are we on, TV?" and the model responding, "Yes, we're making a movie." Renfrow stated this was the only conversation he heard. When the filming started, street noises and camera equipment drowned out the balance of the discussion ensuing in Room No. 1.
In the affidavit accompanying his memorandum in opposition to defendants' motion for summary judgment, plaintiff commented on the remarks made by himself and the model when they entered the room. The plaintiff stated:
"* * * such conversation * * * was made in the line of my duty and performance as a Police Officer which at the time thereof, I believed possibly referred to a film being taken by [the model] and her coconspirators for sale to me as a putative customer which film would serve as evidence which was the subject of my investigation."
Plaintiff contends that the actions of the film crew in both filming and employing recording equipment constitute eavesdropping within the meaning of section 14-2 of the Illinois Criminal Code of 1961, (Ill. ...