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Criminal and Civil Liability for Recordings

November 28, 2012

Legality of Video Recordings

The New Jersey Wiretapping and Electronic Surveillance Control Act,1 provides, in relevant part, that:

Except as otherwise specifically provided in this act, any person who:

a. Purposely intercepts, endeavors to intercept, or procures any person to intercept or endeavor to intercept any wire, electronic or oral communication; or

b. Purposely discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of wire, electronic or oral communication; or

c. Purposely uses or endeavors to use the contents or any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of wire, electronic or oral communication;

shall be guilty of a crime of the third degree . . .

New Jersey’s wiretap act was modeled after the federal wiretapping statute.2  Both New Jersey and federal cases have unanimously held that the wiretapping statutes were not intended to apply to a recorded silent video surveillance or the video portion of a videotape that includes a sound component.3  As such, videotapes must be broken down into their two components – audio and video – both of which must be analyzed separately.

a. Audio Recording

The audio portion of a recording will be treated under regular wiretapping laws.  Federal law allows the recording of an oral communication with the consent of at least one party to the conversation.  A majority of the states (38 states and the District of Columbia) – including New Jersey – have adopted wiretapping statutes based on the federal law.  These laws are referred to as “one-party consent” statutes.  Under these statutes, a party to a conversation can legally record it.

Although these statutes require only one party to consent to the recording of a conversation, they explicitly do not protect recordings that are done for a “criminal or tortious purpose.”  On this point, New Jersey law provides as follows:

It shall not be unlawful under this act for:

d. A person not acting under color of law to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception, unless such communication is intercepted or used for the purpose of committing any criminal or tortious act in violation of the Constitution or the laws of the United States or of this State or for the purpose of committing any other injurious act . . . .4

The federal provision, 18 U.S.C. § 2511(2)(2), is virtually identical to the relevant portion of N.J.S.A. 2A:156A-4.  Many states have similar exceptions.

In Sussman v. American Broadcasting Co.,5 employees of a “psychic hotline” who were secretly recorded by an undercover reporter working for “Primetime Live” sued ABC for violation of the federal wiretapping statute, arguing that the taping was done for the illegal purpose of invading the employees’ privacy.  The Ninth Circuit rejected this argument.  The court first noted that an otherwise legal taping that is done to achieve a “further impropriety, such as blackmail,” becomes a violation of the law.6  The court held, however, that even if ABC’s means of taping were illegal because the act violated the employees’ privacy, it would not make the taping illegal under the wiretap act.7  Because the employees “produced no probative evidence that ABC had an illegal or tortious purpose” when it made the tape, the reporter did not violate the federal statute.8  Under this analysis,  it is unlikely (although possible) that a court would find that our client had a criminal or tortious purpose when he filmed the video.

Twelve states require the consent of all parties to a conversation to record it. These laws are referred to as “all-party consent” statutes.  Those jurisdictions include: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.  Thus, if the person being recorded did not consent, the recording would violate the laws of those twelve states.

On a side note, courts interpreting the definition of “oral communication” in the federal and New Jersey acts have opined that, in order to constitute an “oral communication” one must have a “reasonable expectation of privacy.”9  The New Jersey statute defines an “oral communication” as follows:

any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but does not include any electronic communication.10

It could be argued that the person being recorded did not have a reasonable expectation of privacy in the events that were recorded.  In Hornberger v. American Broadcasting Company, Inc.,11 the court ruled that police officers that were secretly videotaped while they were searching a car did not have a claim under New Jersey’s wiretapping law. The officers had no reasonable expectation of privacy in a conversation that occurred in a car on the shoulder of a busy highway, the New Jersey appeals court ruled.12  Thus, the taping, done for a show on racial profiling, was legal.13  If it is found that the person being recorded did not have a reasonable expectation of privacy, then the audio recording would not constitute an “oral communication” and it would therefore not be protected by the wiretap acts.

b.Video Recording

The laws of 13 states expressly prohibit the unauthorized installation or use of cameras in private places.  In Alabama, Arkansas, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota and Utah, installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the people recorded or observed is against the law.14  A private place is one where a person may reasonably expect to be safe from unauthorized surveillance.  Generally speaking, if a defendant intruded into someone’s seclusion in a place they expect privacy (e.g., a bathroom or their bedroom) this element will be met.

The law provides the “most heightened” protection to the privacy interests of individuals in their home.  Thus, filming an individual in their home is a risky venture.  The fact that the recording took place in a common area, such as a living room, might negate any reasonable expectation of privacy, however.  With respect to the videotape of an individual in a motor vehicle, on the other hand, a court would most likely find that the individual did not have a reasonable expectation of privacy, so long as the vehicle was not located in a secluded location that was not in public view when the recording took place

Several states, including New Jersey, have laws prohibiting the use of hidden cameras only in certain circumstances, such as in locker rooms or restrooms, or for the purpose of viewing a person in a state of partial or full nudity.  In New Jersey, N.J.S.A. 2C:14-6 (entitled “Invasion of Privacy”) makes it a third-degree crime to videotape, record, or otherwise reproduces in any manner or to disclose any videotape, recording, or any other reproduction of  “the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.”  Many other states have similar laws.  For example, it is illegal in Illinois to “videotape, photograph, or film” people without their consent in “a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom.”15  The federal government does not have a hidden camera law.

II. Legality of Distributing the Recording

Federal law and the laws of most other state laws make it illegal to disclose the contents of an illegally intercepted audio recording.  In New Jersey, it is a third-degree crime to disclose the contents of an audio recording knowing or having reason to know that it was taken unlawfully.16  Thus, whether the dissemination of the audio recording is illegal depends on whether the actual recording is deemed illegal.  If the audio recording is found illegal, then the dissemination of it would be illegal so long as the defendant knew or had reason to know that it was taken unlawfully.

Although New Jersey makes the disclosure of any videotape of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact a third-degree crime, it does not appear that the dissemination of the video segment of the recordings in question would violate New Jersey law.  If it is found, however, that the video portion of the recording violates the hidden camera laws of other states, then the dissemination of the video would constitute a crime under the laws of those states.

III.Potential Civil Causes of Action

New Jersey as well as most other states recognize the tort of invasion of privacy. Undercover recording in a private place can prompt civil lawsuits under this cause of action.  Under an action for privacy invasion, anyone invading the privacy of another is liable for harm caused, including harm to the other’s interest in privacy, mental anguish, and special damages.

Invasion of privacy encompasses four distinct kinds of invasion of four different interests of the plaintiff:

(1) Intrusion (e.g., intrusion on plaintiff’s physical solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping, or prying into personal affairs);

(2) Public disclosure of private facts (e.g., making public private information about plaintiff);

(3) Placing plaintiff in a false light in the public eye (e.g., a major misrepresentation of plaintiff’s character, history, activities, or belief, which is highly offensive to a reasonable person); and

(4) Appropriation, for the defendant’s benefit, of the plaintiff’s name or likeness.17

The first two legal claims – intrusion and public disclosure of private facts – are applicable to this set of facts.

a.  Publication of Private Facts

New Jersey and the majority of states recognize a legal claim for publication of private facts.  One who publishes private or personal information about someone without their permission can expose themselves to legal liability, even if the portrayal is factually accurate.  In New Jersey, the elements of a publication of private facts claim are: (1) public disclosure; (2) the matter or matters revealed were actually private; (2) dissemination of such facts would be offensive to a reasonable person; and (3) there is no legitimate public interest in being apprised of the facts publicized.18

A plaintiff bringing a publication of private facts claim must first show that the defendant made a public disclosure of the fact or facts in question. This means communication to the public at large, or to so many people that the matter must be regarded as likely to become public knowledge. As a general matter, publication of information on a website or blog will satisfy this element.

The plaintiff must next show that the defendant disclosed a private fact.  A private fact is an intimate detail of one’s private life that is not generally known. Common examples of private facts include information about medical conditions, sexual orientation and history, and financial status.  One cannot be held liable for giving publicity to a matter that the plaintiff leaves open to the public eye.  For example, in Sipple v. Chronicle Publ’g Co.,19 when the plaintiff sued two newspapers for revealing that he was a homosexual, the court denied him relief, finding that his sexual orientation and participation in gay community activities was already widely known by hundreds of people in a variety of cities. The record showed that, prior to the publication in question, the plaintiff had frequented gay bars, participated in gay pride parades, and that his friendship with a prominent gay figure was well-known and publicized in gay newspapers.20 This, in the court’s view, was sufficient to establish that the plaintiff had left his sexual orientation open to the public eye.21

Additionally, in Puckett v. American Broad. Co,22 a stripper sued ABC for publishing private facts about her when the television show 20/20 aired a program about the allegedly illegal activities of several persons associated with the strip bar where she worked. The plaintiff appeared in a few shots of the TV program, dancing nude in the background.  The court held that the plaintiff did not have a valid claim for publication of private facts because her stripping activity was open to the public eye; anyone who paid the $5.00 cover charge could see her performing her work.  What these cases suggest is that plaintiffs living“double lives” cannot sue under this theory.

A plaintiff bringing a publication of private facts claim must also show that, under the circumstances, publishing the facts in question would have been highly offensive to a reasonable person of ordinary sensibilities. The question is not whether the plaintiff himself/herself found the public disclosure highly offensive, but whether an ordinary person reflecting community mores would find it so. Some examples of activities found to be highly offensive include publishing a photograph of a woman nursing a child or posing nude in a bathtub, displaying a movie of a woman’s caesarian operation, and disseminating a video showing two celebrities having sex.

In many states, including New Jersey, a plaintiff bringing a publication of private facts claim must show affirmatively that the facts disclosed were not newsworthy – i.e., they were not a matter of legitimate public concern. In other states, the defendant must raise newsworthiness as a defense. Determining what facts are of legitimate public concern is often difficult to determine.  In determining whether the newsworthiness privilege applies, courts balance “the relative newsworthiness of the publication against its level of offensiveness and intrusiveness into private matters.  Courts consider the following factors: “ ‘ (1) the social value of the facts published; (2) the depth of the article’s intrusion into ostensibly private affairs; and (3) the extent to which the party voluntarily acceded to a position of public notoriety.’ ”23 “[T]he assessment of public interest includes a determination whether the person ‘voluntarily and knowingly engaged in conduct that one in his position should reasonably know would implicate a legitimate public interest, engendering the real possibility of public attention and scrutiny.”24

Courts applying New Jersey law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy): a book chapter describing a crime that took place more than ten years previously, in a case brought by victims of the crime; a student newspaper article about a University investigation of misconduct on the part of University staff, including the results of the investigation; a newspaper article about the sale of a large home that was a local historic landmark, including information about the sale price, the number of rooms, and the owner’s occupation; and a radio talk show host’s disclosure that the plaintiff, a “media monitor,” had been in a mental institution, when the plaintiff had engaged in an ongoing and heated public debate with the talk show host about the propriety of the host’s views.

b.  Intrusion

The second applicable cause of action is intrusion upon seclusion. Each state has its own definition of what constitutes an intrusion.  In New Jersey, “ ‘ 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.’ ”25  In most states, to make out an intrusion on seclusion claim, a plaintiff must generally establish the following four elements: (1) the defendant, without authorization, must have intentionally invaded the affairs of the plaintiff; (2) the invasion must be offensive to a reasonable person; (3) the matter that the defendant intruded upon must involve a private matter; and (4) the intrusion must have caused mental anguish or suffering to the plaintiff.26

With respect to the first element of an intrusion claim – intentional invasion into the private affairs of another – courts generally require that the intrusion take the form of a “physical trespass.” This can be met literally, such as by physically entering onto private property, or by an electronic or optical intrusion, such as using zoom lenses or highly sensitive microphones to photograph or record a person who has a reasonable expectation of privacy.

The second element requires that the actions giving rise to a claim must be offensive to a reasonable person. This element requires more than mere discomfort or embarrassment.  For example, barging in on someone in the bathroom and photographing them using the facilities would be offensive to a reasonable person while taking a picture of them standing at the mirror combing their hair likely would not be offensive. .

The third element requires that the intrusion involve a private matter.27   Generally speaking, if a defendant intruded into someone’s seclusion in a place they expect privacy (e.g., a bathroom or their bedroom) or while they are engaged in an activity that most reasonable people would expect to be private (e.g., intimate contact with another) this element will be met.  As discussed above, the law provides the “most heightened” protection to the privacy interests of individuals in their home.

With respect to a videotape of an individual in a motor vehicle, on the other hand, court would most likely find that the individual did not have a reasonable expectation of privacy in the vehicle, so long as the vehicle was not located in a secluded location that was not in public view when the recording took place.  In Villanova v. Innovative Investigations, Inc.,28 the plaintiff brought an action against an investigator who had been hired by plaintiff’s ex-wife, alleging that the investigator had invaded his privacy by having his ex-wife place a global positioning system (“GPS”) unit in his vehicle in order to track his movement.  The court held that there is no liability under this tort theory “for observing [a plaintiff] or even taking his [or her] photograph while he [or she] is walking on a public highway since he [or she] is not then in seclusion, and his [or her] appearance is public and open to the public eye.”29  “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his [or her] movements from one place to another.”30

Finally, the fourth element requires that the intrusion must have resulted in mental anguish or suffering for the person whose privacy was invaded.  This suffering can come from surprise, fright, or even anger at having been disturbed.  In the case of surreptitious invasions, it can also come from the plaintiff finding out, after the fact, that his or her privacy has been invaded. The degree of anguish or suffering the plaintiff experiences will determine the amount of damages he or she is entitled to if the other elements of an intrusion claim are established.

Conclusion

The audio recordings can raise several red flags, particularly with regard to “all-party consent” laws.  The intent of the individuals recording is relevant.  If it is found that recording was done for a criminal or tortious purpose, then the recording will deemed illegal.  Notably, New Jersey courts have not yet decided whether the audio portion of a tape containing an illegal aural surveillance is severable and therefore legal.

Most video recordings would not violate the laws of New Jersey or the federal government.  They very well may violate the “hidden camera” laws of some of thirteen states, however, if it is found that the recording took place in a private place.  Additionally, there is potential criminal and civil liability in the release of a video recording, although the potential for civil liability is much greater.

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