Photo Attorney

Sep 18, 2008

"Reasonable Expectation of Privacy Issues" for Photographers

As discussed in an earlier blog, privacy issues can be divided into four areas. The first area, invasion of privacy, generally occurs for photographers when taking the photo.

But you violate someone's "right of privacy" only when that person has a "reasonable expectation of privacy." As put forth in the Restatement of Torts 2d, Section 652B, a violation occurs with:

"The intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person." Each state may adopt this section in whole or in part.

The use of the term "highly offensive" is key. When someone is in public, even if on private property with limited access, that person likely doesn't have an expectation of privacy.

Take, for example, the case, Furman v. Sheppard, from Maryland. Furman had sued Sheppard for personal injuries. Sheppard trespassed onto private property at the Maryland Yaught Club to videotape Furman while he was on a boat. Furman thus claimed Sheppard violated his expectation of privacy. The court disagreed.

While the court considered the fact that Furman's expectation of privacy was reduced because he had filed a lawsuit against Sheppard, the court also evaluated other important factors to find that Furman did not have a reasonable expectation of privacy, such as:

"an individual's reasonable expectation of privacy reaches its zenith in the home."

"business and commercial enterprises generally are not as private as a residence . . . although a club operated for a select clientele may not be public, 'the fact that the premises are maintained as a club with a membership policy is not conclusive in favor of the club. Failure to enforce limitations on admittance would warrant the conclusion that the persons operating the club had no reasonable expectations of privacy."

"appellant's activities could be observed by passers by. To this extent appellant has exposed [himself] to public observation and therefore is not entitled to the same degree of privacy that [he] would enjoy within the confines of her own home."

A person's expectation of privacy is specifically defined by each state, but each state's privacy standard is similar to the Restatement section cited above. To be sure of whether your photography activities violate another's expectation of privacy, check with your attorney.