Can someone film me without my permission on private property

The legality of taking photos and videos depends on the context. Whether a photograph or video was legally taken depends on the location where it was taken, and the photographer's status with regard to being on that property.

Broadly speaking, the public has the right to take photos and videos in public spaces, for example in public parks or city streets. The analysis becomes more complicated in privately owned spaces.

For example, the public also has an implied right to be on the public portions of private property, such as in a restaurant or a stadium. However, that implied right does not extend to private areas of public accommodations, such as offices or the hallways of condominium buildings. Moreover, the owner of a restaurant or stadium can certainly prevent a photographer from snapping photos. Indeed, you will often see a "No photos or videos!" sign at many concert venues. Because this space is privately owned, the owners are permitted to impose that restriction.

When are you permitted to take photographs or videos in private spaces?

Public Access Versus Trespassing

If you are trespassing, you likely do not have the right to take photos and videos. Sometimes, it may seem that the public has been given access to private property, especially when public use of the property is traditional. Examples of this are wilderness areas, hiking trails, swimming areas, or access areas to a beach.

If you make a mistake, you still may be in trouble, regardless of your belief that your access complied with the law. Do not depend on the lack of signs. In most places, people are not required to post their land with "no trespassing" signs.

If you are considering taking photos or videos of private space, you should remember:

• Extending a camera over a fence may be a trespass.
• Flying over a property for the purpose of taking photos may be a trespass.
• "No Trespassing" signs are not required in order to establish a space as private.
• If you have permission (sometimes called a "license") to be in a particular location or take photos there, do not abuse the permission.

Courts will often find some exceptions to the general prohibition on taking photos and videos in an area where someone is trespassing, for example if the person:

• was taking photographs to document a disaster (that is, a newsworthy purpose)
• was taking photographs to document a crime, or
• had permission to be on the property for other purposes.

The factors above are important to consider, but the answer to the question of whether or not you were trespassing when you took photos and videos is basically fact driven. That means that all the facts relative to your legal status on the property may be considered if the property owner files a complaint against you. The key is to use your common sense and err on the side of not trespassing or angering the property owner.

Landowners Can Sue Based On Theory of "Nuisance"

A legal doctrine known as "nuisance" is another potential block against your ability to take photos and videos. In terms of photography and video, a nuisance is some activity that interferes with a property owner's reasonable use of his or her own property.

It is difficult for a property owner to prevail in a nuisance action against a photographer or videographer, because it is difficult to meet the legal burden needed to prove a claim. The annoyance to the property owner needs to be very real, and not just the result of the property owner's hypersensitivity or subjectivity. However, if you regularly enter your neighbors' yard and take photos of their house or interrupt their parties, this could expose you to a nuisance claim.

How a Lawyer Can Help

If you are unsure of whether you can take photos or videos in a particular place, it might be helpful to speak with a lawyer. If the photographs and videotapes are taken on private property, there are several areas of law that could lead to liability for the photographer, such as invasion of privacy, nuisance, and physical harm or harm to the reputation of the property owner. Remember, the legal inquiry is fact driven, and a lawyer should know which facts are helpful to you and which are harmful, and be able to advise you about what to do.

Questions for Your Attorney

• Does the public have access to this particular piece of property?
• How can I be sure that I am on private property with permission?
• What is the scope of my permission?
• How can I decide whether taking the photographs or videotape will fall under an exception for reporting of disaster or crime?

We live in the digital age where we feel compelled to record interesting things we see going on in the world around us. But before you whip out your phone to start recording, you should consider the legality of it. So, if you’re wondering, “Can I sue someone for recording me without my permission”? Read on.

Federal Wiretap Act

The main goal of the federal wiretapping law is to protect an individual’s privacy in communications with other parties. What comes to mind when you think of a “wiretap”? Probably someone listening in on your phone conversations, right?

Well, that’s just one aspect of the Act. It makes it illegal to intentionally intercept, share, or use the contents of any oral or electronic communication using a device. The Act carries with it criminal and civil penalties for such violations.

However, there are two primary exceptions to the laws on recording conversations, where it is not deemed illegal to wiretap. These are:

1. The Provider Exception

Telephone and mobile phone service providers are allowed to listen in and monitor phone calls as long as they have a valid court order. They can also do it when they need to provide a customer with service or inspect the equipment. They are also allowed to wiretap if they need to protect their (the provider’s) rights or property. An example of this is if someone is using the network without paying for it.

2. The Law Enforcement Exception

If someone is suspected to be engaging in illegal activities, law enforcement officials can legally intercept communications if one of the parties consents to it. Some state phone call recording laws require that all parties in communication consent.

In such instances, the Act describes “intentional wiretapping.” It’s important to be aware that ignorance of the law cannot be used as a defense. So, if someone isn’t aware of the Act, or thinks that it is not illegal to intercept your emails or record your phone calls, they are still liable under the Act.

Protective State Laws vs. Federal Laws

In scenarios where state laws are less protective of privacy than the Wiretap Act, the latter takes precedence. This means that a state law that would allow someone having a private conversation to be recorded without their consent would be pre-empted by the federal law, effectively rendering it void.

On the other hand, in instances where state laws offer citizens a higher level of privacy than what is stipulated in the federal law, the Act would not be pre-empted. The state law provisions would be upheld.

With that said, the 12 states that require every party present in a conversation to consent to record are New Hampshire, Michigan, Florida, Nevada, Illinois, Washington, Maryland, Montana, Massachusetts, Pennsylvania, Connecticut, and California.

Is It Against the Law to Record Someone Through Video?

Video recording laws by state are generally situational. It’s important to clarify that the Wiretap Act doesn’t apply to video or photo capture. It is legal to record someone in public, as long as they don’t have a “reasonable expectation of privacy”.

The Wiretap Act protects communications that the individuals being recorded perceive as private. Whether one perceives a conversation as private largely depends on the context.

Where was the conversation taking place? Was it in private or in public? Suppose you were at a party having a conversation amidst a group of friends openly stating that you swindled your business partner in a deal. If someone happened to record this conversation, it would be admissible as evidence in court if your business partner initiated civil proceedings against you.

There’s also a huge divide between video and audio recording with regards to the severity level of each. While you can get away with a lot more when capturing video footage without sound, adding an audio recording is a whole different ball game.

But there are exceptions to this even when you’re in a public space. For instance, let’s say you’re in a restaurant that’s displaying a notice prohibiting patrons from using their cameras while in the venue. If you start recording, the establishment reserves the right to sue you.

Federal laws also prohibit videotaping or photographing someone who is nude or engaging in any form of sexual activity in an area where they enjoy a reasonable expectation of privacy. This includes a public bathroom stall or locker-rooms. This is in direct contravention of the federal Video Voyeurism Prevention Act and is punishable by a fine or imprisonment.

Penalties for Recording Someone Without Their Permission

Violating state and federal laws on recording has serious ramifications. An individual could be ordered to pay damages in a civil lawsuit against them or might even face jail time or a hefty fine.

So, if someone recorded you without your consent, it is considered a gross infringement on your privacy, and you can initiate a lawsuit against them. If you win the suit, expect to receive a handsome amount in damages.

On a higher level, each state imposes some criminal liability on a person who violates the secret recording law. Criminal penalties could range from a misdemeanor conviction to a short-term prison sentence. That would be their cue to get a criminal defense lawyer involved.

On the federal front, the consequences are more punitive. Violating the Wiretap Act carries a possible five-year sentence, a $500 fine or both.

Parting Shot

To sum up, someone can use their smartphone to record you in public only if you have no “reasonable expectation of privacy.” You can sue someone for recording you in a conversation that you perceived to be private and did not consent to the recording.

You can also report them to law enforcement authorities for infringing on your right to privacy in which case they’ll assume criminal liability.

[See our list of lawyers who specialize in this type of matter.]

If you have more legal questions, you can also chat online with a Laws101.com attorney where you’ll be instantly connected to a lawyer who can give you legal guidance on your specific case or question.

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