This is the fourth in a series of posts I’ve written that call attention to some of the topics covered in the Citizen Media Legal Guide the Citizen Media Law Project began publishing in January. This past month we rolled out the sections on Newsgathering and Privacy, which address the legal and practical
issues both professional and non-professional journalists may encounter as they gather documents, take photographs or
video, and collect other information.

In this post, I highlight the Gathering Private Information section of the legal guide, which outlines various privacy laws that set limits on the use of recording devices and the collection of private
information.

Gathering Private Information

If you physically enter a private area, photograph or take video of
people engaged in private activities in places where they reasonably
expect to be private, or in some other other way intrude into a
person’s privacy (by, for example, opening the person’s mail), you could
be liable for a violation of what is called “intrusion upon seclusion.” If you collect certain personal data, this can
also intrude into a person’s private affairs. In the newsgathering
context, the actual collection of the data could be seen as intrusion
if the method you use meets the four general elements for an intrusion
claim
.

Generally speaking, however, you will not be liable for
intrusion if you photograph or capture video of people in public
places, even if they have not consented to being recorded, because
individuals cannot have a reasonable expectation of privacy when in public.  Nor will you be liable for intrusion if you gather private information from documents that are available to the general
public.

If you plan to gather private information or take photographs or video
of people engaged in private activities in places where they
could reasonably expect to be private, you should:

You should know that it is not necessary that you publish the
photographs or information you gathered; an intrusion claim rests
solely on the way in which you gathered your information. If you do
subsequently publish the private information you gathered, however, you
could also face liability for what is called “publication of private facts.” See the
section on Risks Associated with Publication in this guide for more information on the risks you may face if you publish private information.

Practical Tips for Avoiding Liability

While you can’t always eliminate your legal risks when gathering
news or information, there are a number of ways you can minimize your
risk of being on the receiving end of an intrusion or other
newsgathering related lawsuit. Some suggestions include:

  • Make sure you gather information from public places and public sources:
    Photographing, taking video, or reporting on people where they should
    reasonably expect to be seen will not typically violate their privacy.
    Examples include photographing a person on the steps of a courthouse,
    at a public rally, at a sporting event, or at another public venue. By
    exposing themselves to public observation, people are not entitled to
    the same degree of privacy that they would enjoy within the confines of
    their own homes. The right to record the activities of others will
    typically extend to activities that take place on private property if
    they can be observed or heard from public places. Courts have held that
    there is no right to privacy attached to activities in the public view.
  • Be cautious when using telephoto lenses and special equipment if that equipment allows you to penetrate into private areas:
    You may be liable for intrusion if you use advanced equipment, such as
    telephoto lenses or highly sensitive microphones, to obtain information
    or photographs that you could not have gotten otherwise. If you plan to
    use such equipment, you should carefully consult the section on Elements of an Intrusion Claim in this legal guide and proceed with caution.
  • If you are gathering documentary information, you should rely on publicly available information as much as possible:
    Gathering information from documents that are available to the general
    public, such as property records or public financial information, will
    make it unlikely that someone can claim you violated their privacy when
    you collected the information. Similarly, if a person makes certain
    private facts about themselves public by announcing it or disclosing
    the information to others, gathering this information will not make you
    liable for intrusion.
  • Where possible, get consent from the people you cover:
    Consent is typically one of your strongest defenses to intrusion.
    Consent can often be gained expressly, by someone specifically telling
    you that you can photograph them (which you should get in writing), but can also be implied. If a person
    fails to object to your presence after you identify yourself as a
    member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and
    photography equipment.
  • Avoid the use of concealed cameras or microphones: Even
    if your subject consents or you are invited into their home, you could
    still be liable for intrusion if you use a concealed
    camera or recording device. Courts have sometimes held that the
    person’s consent only extends to the face-to-face interview and not to
    any concealed recording. For more on this subject, please refer to the Recording Conversations, Phone Calls, Meetings and Hearings section of this legal guide.
  • Remember that intrusion is based on the act of
    newsgathering, it is not necessary for you to publish what you gather
    to be liable
    : If you do subsequently publish the private
    information you gathered, you could also face a claim for publication
    of private facts. See the section on Risks Associated with Publication in this guide for more information.
  • Other helpful resources: There are a number of other online resources you can consult that will help you avoid liability. The RCFP’s Nine Keys to Avoiding Invasion of Privacy Suits is a good place to start as is the Radio-Television News Directors Association’s page on When Reporting Goes to Far.