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    CMLP Legal Guide: Newsgathering and Privacy

    by David Ardia
    March 10, 2008

    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.

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    Gathering Private Information

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    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.

    Tagged: cmlp intrusion newsgathering photography privacy video

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