Do I have to worry about privacy when I post videos of people online?


 

Recording and uploading videos to the internet may raise two concerns:

 (1) Whether the recording process violated someone’s protected privacy interest, and

(2) Whether the distribution of the video violated a protected interest in keeping information private.

Journalists are subject to the same laws as everyone else when it comes to respecting privacy.  New Jersey recognizes the four types of invasion of privacy recognized by most states: intrusion upon seclusion, publication of private facts, false light, and appropriation.  The last three torts are generally more applicable to posting and distributing video online (see below), whereas intrusion upon seclusion is more applicable to video capture.

Generally, people have no reasonable expectation of privacy in public.  Thus most video recordings of people made in public will be unproblematic unless your behavior is unreasonable.  Audio recordings are a different story.   Intrusions upon seclusion will sometimes involve physical trespass, but not always (see Wolfson v. Lewis).


 

What privacy issues do I have to worry about when I capture video?

Intrusion Upon Seclusion

In rare cases, subjects of a recording can prove that you intentionally intruded upon their solitude, seclusion, or private affairs in a way that would be highly offensive to a reasonable person.  In New Jersey, you cannot intrude upon the seclusion of a corporation – though corporate officers may have claims in some cases.

Recording from a public place does not normally give rise to intrusion upon seclusion, because things seen from public are not generally private.[1]  But in New Jersey it may be unsettled whether persistent, surreptitious recording of people from public places, when those subjects may have a reasonable expectation of privacy, such as hundreds of feet from a street in their homes, can be an intrusion upon seclusion.

No Intrusion

Intrusion

In general, private surveillance from public places is not intrusion.  The New Jersey Superior Court affirmed summary judgment for an insurance company after a woman recovering from a car accident discovered she was being surveilled, entirely on public streets, by insurance company investigators.  The court noted that she should have expected some investigation after filing an insurance claim. Figured v. Paralegal Tech. Servs., 231 N.J. Super. 251 (N.J. Super. Ct. App. Div. 1989).

Investigators who used shotgun microphones and video cameras from a van with tinted windows parked in parking lots, streets, and a driveway to surreptitiously record a family’s conversations in and around their home from dozens of feet away could constitute intrusion upon seclusion, even if the recordings were from public places and were newsworthy.

Wolfson v. Lewis, 924 F.Supp. 1413 (E.D. Pa. 1996).  New Jersey courts have not yet held that surveillance from a public place can constitute intrusion, though many other courts have followed Wolfson.

The intrusion must be highly offensive to a reasonable person.  Merely recording people in a hospital or an emergency room and then broadcasting the footage is not necessarily an intrusion upon seclusion if it is not highly offensive to a reasonable person.  Castro v. NYT Television, 384 N.J. Super. 601 (N.J. Super. Ct. App. Div. 2006).

 

You cannot intrude upon a corporation’s seclusion in New Jersey.  A woman who surveilled a company lot from an adjoining property did not intrude upon the seclusion of the observed CEO.  N.O.C., Inc. v. Schaefer, 197 N.J. Super. 249 (N.J. Super. Ct. Law Div. 1984).

 

 

Special New Jersey penalties for capturing nudity

In New Jersey, you cannot film or even observe circumstances where you know or should know that others might “expose intimate parts or may engage in sexual penetration or sexual contact” – unless you have the consent of everyone being filmed or observed.[1]  New Jersey also provides for civil damages against defendants who film or disclose people in such intimate situations.[2]

No Invasion

Invasion

The State must prove that a defendant has actually made the illegal recording if multiple people use the computer/recording device.  Rivera v. Hopatcong Borough Police Dept., 2010 U.S. Dist. LEXIS 9008 (N.J. Super. Ct. App. Div. 2010).

Disclosing a video of a person having sex, knowing you do not have their consent to do so, violates New Jersey law.   Robinson v. City of Atl. City, 2013 N.J. Super. Unpub. LEXIS 769 (N.J. Super. Ct. App. Div. 2013), So does recording video of someone who is naked – again, knowing you do not have their consent. State v. Brown, 2014 N.J. Super. Unpub. LEXIS 2218 (N.J. Super. Ct. App. Div. 2014).

 

Man who distributed a nude photo sent to him on condition that it not be distributed had violated New Jersey law because he ‘disclosed’ the photo knowing it was “for his eyes only.”  State v. Parsons, 2011 N.J. Super. Unpub. LEXIS 2972 (N.J. Super. Ct. App. Div. 2011).

 

Dharun Ravi was convicted of livestreaming an intimate encounter of his dorm mate, Tyler Clementi, from a hidden camera in their shared dorm room – even though Ravi recorded no actual nudity or sex.  State v. Ravi, 2012 N.J. Super. Unpub. LEXIS 1757 (N.J. Super. Ct. App. Div. 2012).

 


 

What privacy issues do I have to worry about when I post video online?

Private Facts

You can be liable for revealing private facts about individuals 1) if they have a reasonable expectation of privacy as to those facts, 2) if the revelation would be highly offensive to a reasonable person, 3) if they have not given you consent to reveal them, 4) and if the public has no legitimate interest in knowing those facts.  Revelations considered newsworthy are generally free from private facts liability.

No Private Facts Liability

Liability for Revelation of Private Facts

A radio host who revealed that a caller and activist seeking his show’s cancelation had been in a psychiatric hospital was not liable for revealing private facts.  Though the host made a private and highly offensive revelation, the caller had “injected himself into a public controversy” and made himself newsworthy, granting the public a legitimate interest in knowing.  Wilson v. Grant, 297 N.J. Super. 128 (N.J. Super. Ct. App. Div. 1996).

Disclosure of a ‘bundle’ of public information compiled from ‘scattered bits’ of information could leave you open to a private facts claim.  Sex offenders are required to register their home addresses as well as a list of other personal details,[1] some of which are then required to be made public on the internet.  In these cases, courts have found a strong, countervailing public interest.  A.A. v. State, 384 N.J. Super. 481 (N.J. Super. Ct. App. Div. 2006) (quoting Doe v. Poritz).

So long as there is a legitimate public interest in doing so, there is generally no liability for disclosing publicly available information, such as a public address, Bisbee, 186 N.J. Super. 335 (N.J. 1982), or someone’s previous conviction record, Romaine v. Kallinger, 109 N.J. 282 (N.J. 1988), even if expunged. G.D. v. Kenny, 205 N.J. 275 (N.J. 2011), or that a university investigation has led to staff resignations.  Gallo v. Princeton University, 281 N.J. Super. 134 (N.J. Super. Ct. App. Div. 1995).

 

In upholding Megan’s Law, the NJ Supreme Court held disclosure of sex offenders’ ‘publicly available’ private addresses did implicate a privacy interest if accompanied by disclosures of other information – even if largely publicly available.  However, in that case the public interest in disclosure outweighed the privacy interest.  Doe v. Poritz, 142 N.J. 1 (N.J. 1995).

 

 

False Light

There can be liability for spreading false and offensive information to the public that significantly misrepresent a person or organization’s character, history, activities, or beliefs.  Opinions are generally exempt and will not result in liability, but merely putting an “I think” before a statement will not turn it into an opinion.  False light claims are often similar to defamation claims, but cover utterances that are less definitive and more impressionistic.

No False Light Liability

False Light Liability

Making a true statement (e.g., a police search was nonconsensual and illegal) is not false light invasion of privacy.  Hornberger v. ABC, 799 A.2d 566 (N.J. Super. Ct. App. Div. 2002).  Neither is the revelation of a conviction.  Daruwala v. Merchant, 2015 WL 4577896 (N.J. Super. Ct. App. Div. 2015).  Non-defamatory opinions generally cannot give rise to a false light claim.  Weiss v. Pinnacle Entertainment, Inc., 2011 WL 8318482 (N.J. Super. Ct. Law Div. 2011), aff’d,2012 WL 1448050 (N.J. Super. Ct. App. Div. 2012); Edelman v. Croonquist, 2010 WL 1816180 (D. N.J. 2010).

Repeating untrue accusations of criminality in the absence of a conviction can give rise to a false light complaint.  Jobes v. Evangelista, 369 N.J. Super. 384 (N.J. Super. Ct. App. Div. 2004).

Information in internal company emails or memos generally cannot give rise to a false light claim if a defendant has not publicly disseminated them.  Clemmons v. Guest Supply-Sysco, 2010 WL 4226216 (N.J. Super. Ct. App. Div. 2010).

Public accusations of seemingly innocuous, though false, assertions (e.g., that someone pulled a fire alarm) can give rise to false light claims.  Ciemniecki v. Parker McCay P.A., 2010 WL 2326209 (D. N.J. 2010).

Firefighter depicted in a photograph holding a flag during a 9/11 ceremony (with a caption to that effect), under a headline regarding a fire department sex scandal had no claim because no reasonable person would think firefighter was implicated in the scandal.  Cheney v. Daily News, L.P., 2015 WL 2084128, 43 Media L. Rep. 1811 (E.D. Pa. 2015).

Musician’s false light claim was allowed to proceed when MTV used poor-quality images and sounds of his drumming that allegedly disparaged his career as a children’s music teacher.  Savely v. MTV Music Television, 2011 WL 2923691 (D. N.J. 2011).

 

Appropriation

There may be liability for appropriating someone’s likeness, without consent, for financial benefit.  The classic case would be using someone’s photo in a product advertisement.

No Liability for Appropriation

Liability for Appropriation

A television dramatization of a murdered police officer was not an illegal appropriation because it was information produced for its own sake and not to market some other product.  Lamonaco v. CBS, 21 Media L. Rep. 2193 (D. N.J. 1993), aff’d, 27 F.3d 557 (3rd Cir. 1994).

Use of a Vietnam veteran’s photo for a book’s promotional campaign, where the photo was not used in the book itself, was appropriation. Tellado v. Time-Life Books, 643 F.Supp. 904 (D. N.J. 1986).

The mere broadcast of video containing someone’s likeness is not actionable unless a defendant seeks to benefit from a commercial association with that likeness.  Castro v. NYT Television, 370 N.J. Super 282 (N.J. Super. Ct. App. Div. 2004).

Though a family consented to be photographed, a defendant’s reprinting and circulation of that photo for commercial use beyond the original consent could constitute appropriation.  Canessa v. J. I. Kislak, Inc., 97 N.J. Super. 327 (N.J. Super. Ct. Law Div. 1967).

Voluntary participation in the creation of a YouTube video may invalidate a claim of appropriation, particularly if the use did not seek to take commercial advantage of the complainant’s likeness.  Collins v. Beauty Plus Trading Co., 2012 WL 967596 (N.J. Super. Ct. App. Div. 2012).

 

 


 

What if I just record audio of people?

New Jersey has a “one-party consent” wiretap law[1] that makes it a crime to purposely record a private conversation without the consent of one of the parties to the conversation.  If you are recording audio or filming video that includes audio, you cannot knowingly film private conversations without consent.  The same law also criminalizes using or disclosing recordings of private conversations, which is particularly tricky when livestreaming, since disclosure of the video occurs at the time it is recorded.

The wiretap statute kicks in only when the subjects of recording have a legitimate expectation of privacy.[2]  Moreover, only the intentional audio capture actually violates the wiretap law.[3]  If you film with audio, you cannot intentionally film someone speaking on the phone in their room without their consent or the consent of the person on the other end of the line.  It would be problematic to film people speaking in the corner of a party, or even on a public park bench if they are whispering deliberately so that others cannot hear them.


 

Are there limitations to recording in public places?

New Jersey’s “one-party consent” recording law prohibits purposely recording or distributing private conversations without the consent of one of the parties to the conversation.  This includes private conversations that occur in public, if the people conversing have a reasonable expectation of privacy.

You have a right to record public meetings and police operations so long as you do not interfere, but you do not have carte blanch to record all public events.  You can report on events, but you cannot record the entirety of public sports or entertainment events that are subject to exclusive licensing agreements.[1]  Likewise, you cannot film in certain places designated by the President under national security regulations.


 

What about limitations on recording on private property?

As a general matter, you cannot film in private places if the owner or occupant of a property asks you not to, or to stop.  The same is true if a business has a posted no-filming policy.  However, if you have filmed in such places, and you post the video, there is unlikely to be any recourse against you.

In some cases, the privacy interest in controlling video capture on private property is outweighed by a public interest, such as newsworthiness.  For example, even a private citizen who inserts themselves into a public debate may make themselves newsworthy (see Wilson v. Grant).


 

Does it matter if the camera is obvious or concealed?

In public, if subjects have no reasonable expectation of privacy, the camera can be hidden or in plain sight.  If subjects do have expectations of privacy, such as in a public restroom or a changing room, you cannot film without consent whether the camera is visible or not.

Courts may infer consent from a camera obviously visible to a subject, particularly if the subject participates on camera – such as answering interview questions.[1]  You still cannot purposely film audio of private conversations without consent, whether or not the camera is hidden.  Though again, courts may consider a visible camera a sign of a subject’s tacit consent.

Surreptitious recording is problematic where subjects have a reasonable expectation of privacy and recording is highly offensive.  New Jersey offers civil remedies for recording without consent in a setting where parties are engaged in sexual activity, have exposed intimate parts, or where you reasonably believe either condition may exist.  Entities have run into problems using cameras to capture vandalism in restrooms.[2]

 


 

Can I film police?

You have a right to film police operations in public for journalistic purposes so long as you do not interfere with the police (see “Filming Police”).  Under those conditions, you have a right to continue filming even if asked to stop.

Recording can be subject to reasonable restrictions on time, place, and manner.  Courts have found that filming sometimes interferes with official police work.[1]  If asked to stop filming, you should be prepared to be arrested if you refuse to comply.


 

When do I need someone’s consent to film them?

You need someone’s permission to film them if they have a reasonable expectation of privacy – either because they are in a private place or if they are secluded in a public place (in a restroom or changing room, for example).

You need one party’s consent to capture audio.

You should also obtain someone’s consent if you are filming for commercial purposes to avoid potential appropriation lawsuits.  You may need consent to use a video of someone in an advertisement for a piece, even if the piece is for purely journalistic purposes, if you do not use that same likeness in the piece itself (see Tellado).

The Children’s Online Privacy Protection Act requires you to obtain parental consent if you operate a website directed at children under 13 or know you are collecting information from a child under 13 (see “COPPA”).  This can include running an online journalism campaign as a subdomain or section of a website, or operating a feed through a website to receive video from a source or interviewee who is under 13.  More information can be found on the FTC’s COPPA FAQ.

Federal law restricts the disclosure of video of substance abuse patients, except – among other conditions – in cases of the patient’s consent.[1]


 

Are there special limitations on the posting or streaming video of minors?

Minors do not enjoy special privacy protections with respect to other people filming them.  In private, the same expectations of privacy are implicated for children as for adults.  What differs for children is that they may not always possess the ability to consent to be filmed, meaning you may need to obtain parental consent.

There has been some movement in New Jersey to criminalize the filming of minors without parental consent; these laws have not been enacted so far.  However, filming for commercial purposes, particularly filming extensively, might implicate parental consent through child labor laws.[1]

The Appellate Division has upheld the right of a parent or guardian to vicariously consent to their child’s being recorded when the parent or guardian is not a party to the conversation, so long as they have a “good faith, objectively reasonable basis” for believing it is necessary and in the best interests of the child.[2]

Schools and the like can restrict filming on their campuses.  The release of information about some educational records is also restricted, which may impact what you can film.

Younger children’s online privacy is to some degree protected by federal law, which requires website operators to obtain parental consent.  Older children, between the age of 13 and 17, may still have a right to disaffirm contracts.  So consent given – particularly for commercial purposes – is not absolute.

If you are a minor under the age of 13 posting video, you may also have to worry about the Children’s Online Privacy Protection Act (see “COPPA”) when posting videos or livestreaming.


 

Do I have to blur people’s faces?

If you’re recording in public, you don’t have to blur faces, because there is no reasonable expectation of privacy.  While you could face a lawsuit for appropriation if you market someone’s likeness for commercial gain, New Jersey recognizes political, newsgathering and entertainment exceptions.

If you are filming in private and without consent, blurring faces can be an expedient way of limiting potential liability.

Federal law protects the identity of substance abuse patients’ identities except in certain cases, including with the consent of the patient (see above).  However, disguising the voice, blurring all identifiable likeness, and otherwise obscuring the patient’s identity may evade these restrictions.

Additionally, under the Children’s Online Privacy Protection Act, website operators do not require parental consent (with strict regard to likenesses in photographs or video) if the face of a minor from whom a photograph or video is collected is blurred (although consent is still required for the child’s voice).


 

Is livestreaming any different from just posting videos online?

When livestreaming, you cannot always get the consent of subjects where consent is required (see above).  Even where the subject consents to a recording, using a video in a way that exceeds the scope of that consent, particularly for commercial gain, might still leave you open to an invasion of privacy claim.

 

Updated September 2015


[2]  D’Onofrio v. D’Onofrio, 344 N.J. Super. 147 (N.J. Super. Ct. App. Div. 2001).

 


[1]  42 U.S.C. § 290dd-2(b)(1).

[1]  American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012).


[1]  Kinsella v. Welch, 362 N.J. Super. 143 (N.J. Super. Ct. App. Div. 2003).

[2]  Soliman v. Kushner Companies, 433 N.J. Super. 153 (N.J. Super. Ct. App. Div. 2013).


[1]  Wis. Interscholastic Athletic Ass’n v. Gannett Co., 658 F.3d 614 (7th Cir. 2011).


[1]  N.J. Stat. Ann. § 2A:156A-3.

[2]  See Stark v. South Jersey Transp. Authority, 2014 WL 2106428 (N.J. Super. Ct. App. Div. 2014) (citing Hornberger).

[3]  See H.E.S. v. J.C.S., 175 N.J. 309 (N.J. 2003).


[1]  Disclosures to police included “’name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence, address of any current temporary residence, date and place of employment, . . . any anticipated or current school enrollment,’ ‘date and place of each conviction, adjudication or acquittal by reason of insanity, indictment number, fingerprints, . . . a brief description of the crime or crimes for which registration is required,’ and ‘[a]ny other information that the Attorney General deems necessary to assess [the] risk of future commission of a crime." N.J.S.A. 2C:7-4(b).”  A.A. v. State at 486.

 


[1]  N.J. Stat. Ann. § 2C:14-9.

[2]  N.J. Stat. Ann. § 2A:58D-1.

 

[1]  Figured v. Paralegal Tech. Servs., 231 N.J. Super. 251, 258 (N.J. Super. Ct. App. Div. 1989) (quoting N.O.C., Inc. v. Schaefer, 197 N.J. Super. 249, Fn. 1 (N.J. Super. Ct. Law. Div. 1984) (citing Bisbee v. John C. Conover Agency, 186 N.J. Super. 335 (N.J. Super. Ct. App. Div. 1982)).