Drones, RING, Surveillance cameras – Are you invading your neighbor's privacy?

Introduction

It seems everyone is installing some type of video surveillance device on their homes and businesses these days.  If crime is not on the rise, it certainly must feel that way too many as more people in my neck of the woods appear to be installing RING doorbell, security surveillance video camera, and using drones that can patrol the airspace.  This technology phenomena naturally raise issues about privacy, and just how far can one go before they will be deemed to be invading the privacy of another.  Will this lead to an increase in privacy-related lawsuits such as intrusion on private affairs.  Our focus will be on California law.

California Civil Code 1708.8

Under Cal. Civ. Code Section 1708.8

a) A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.

Attorney Steve® Tip:  In privacy lawsuits, the important question to always ask is whether or not the Plaintiff had an “legitimate expectation of privacy.”  Certain things done in public, for example, on a street in your neighborhood, at a public school or out in your front yard is probably not a place where a REASONABLE PERSON has an expectation of Privacy.  If you cannot meet this minimum threshold, the case is obviously marching uphill.  The other key question is what is “offensive” to the “REASONABLE PERSON.”  The “reasonable” person is the topic of much debate, but basically, this imposes an objective standard (as opposed to a subjective standard)

(b) A person is liable for constructive invasion of privacy when the person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.

Attorney Steve® Tip:  another question will arise as to what constitutes a “private, personal or familial activity.”  Does sunbathing in a bikini fit the definition?  Your best bet is to NOT point your cameras into your neighbor's back yard, or through their front door or window or in other private areas.  Here is a case where celebrity Erin Andrews was rewarded 55 million dollars in damages for nude video taken of her through a hotel keyhole.

(c) An assault or false imprisonment committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h).

Penalties for Invasion of Privacy

(d) A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294 . If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the person shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).

(e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294 . A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).

(f)(1) The transmission, publication, broadcast, sale, offer for sale, or other use of any visual image, sound recording, or other physical impression that was taken or captured in violation of subdivision (a), (b), or (c) shall not constitute a violation of this section unless the person, in the first transaction following the taking or capture of the visual image, sound recording, or other physical impression, publicly transmitted, published, broadcast, sold, or offered for sale the visual image, sound recording, or other physical impression with actual knowledge that it was taken or captured in violation of subdivision (a), (b), or (c), and provided compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

(2) For the purposes of paragraph (1), “actual knowledge” means actual awareness, understanding, and recognition, obtained prior to the time at which the person purchased or acquired the visual image, sound recording, or other physical impression, that the visual image, sound recording, or other physical impression was taken or captured in violation of subdivision (a), (b), or (c). The plaintiff shall establish actual knowledge by clear and convincing evidence.

(3) Any person that publicly transmits, publishes, broadcasts, sells, or offers for sale, in any form, medium, format, or work, a visual image, sound recording, or other physical impression that was previously publicly transmitted, published, broadcast, sold, or offered for sale by another person, is exempt from liability under this section.

(4) If a person's first public transmission, publication, broadcast, or sale or offer for sale of a visual image, sound recording, or other physical impression that was taken or captured in violation of subdivision (a), (b), or (c) does not constitute a violation of this section, that person's subsequent public transmission, publication, broadcast, sale, or offer for sale, in any form, medium, format, or work, of the visual image, sound recording, or other physical impression, does not constitute a violation of this section.

(5) This section applies only to a visual image, sound recording, or other physical impression that is captured or taken in California in violation of subdivision (a), (b), or (c) after January 1, 2010, and shall not apply to any visual image, sound recording, or other physical impression taken or captured outside of California.

(6) Nothing in this subdivision shall be construed to impair or limit a special motion to strike pursuant to Section 425.16 , 425.17 , or 425.18 of the Code of Civil Procedure .

(7) This section shall not be construed to limit all other rights or remedies of the plaintiff in law or equity, including, but not limited to, the publication of private facts.

(g) This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private, who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity or other misconduct, the suspected violation of any administrative rule or regulation, a suspected fraudulent conduct, or any activity involving a violation of law or business practices or conduct of public officials adversely affecting the public welfare, health, or safety.

(h) In any action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction and restraining order against further violations of subdivision (a), (b), or (c).

(i) The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.

(j) It is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold.

(k) For the purposes of this section, “for a commercial purpose” means any act done with the expectation of a sale, financial gain, or other consideration. A visual image, sound recording, or other physical impression shall not be found to have been, or intended to have been, captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or transmitted.

(l)(1) For the purposes of this section, “private, personal, and familial activity” includes, but is not limited to:

(A) Intimate details of the plaintiff's personal life under circumstances in which the plaintiff has a reasonable expectation of privacy.

(B) Interaction with the plaintiff's family or significant others under circumstances in which the plaintiff has a reasonable expectation of privacy.

(C) If and only after the person has been convicted of violating Section 626.8 of the Penal Code , any activity that occurs when minors are present at any location set forth in subdivision (a) of Section 626.8 of the Penal Code .

(D) Any activity that occurs on a residential property under circumstances in which the plaintiff has a reasonable expectation of privacy.

(E) Other aspects of the plaintiff's private affairs or concerns under circumstances in which the plaintiff has a reasonable expectation of privacy.

(2) “Private, personal, and familial activity” does not include illegal or otherwise criminal activity as delineated in subdivision (g). However, “private, personal, and familial activity” shall include the activities of victims of crime in circumstances under which subdivision (a), (b), or (c) would apply.

(m)(1) A proceeding to recover the civil fines specified in subdivision (d) or (e) may be brought in any court of competent jurisdiction by a county counsel or city attorney.

(2) Fines collected pursuant to this subdivision shall be allocated, as follows:

(A) One-half shall be allocated to the prosecuting agency.

(B) One-half shall be deposited in the Arts and Entertainment Fund, which is hereby created in the State Treasury.

(3) Funds in the Arts and Entertainment Fund created pursuant to paragraph (2) may be expended by the California Arts Council, upon appropriation by the Legislature, to issue grants pursuant to the Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9 (commencing with Section 8750) of Division 1 of Title 2 of the Government Code ).

(4) The rights and remedies provided in this subdivision are cumulative and in addition to any other rights and remedies provided by law.

(n) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Watch Attorney Steve® explain Invasion of Private Affairs

VIDEO:  Click on the picture above to watch this video on Intrusion on Seclusion and Solitude.  Make sure to SUBSCRIBE to our legal channel for Breaking IP News.

California Civil Code 1808.85

California Civil Code Section 1808.85 discusses:

(a) A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other's consent, if:

(1) the person knew that the other person had a reasonable expectation that the material would remain private,

(2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration,

and

(3) the other person suffers general or special damages as described in Section 48a.

(b) As used in this section, “intimate body part” means any portion of the genitals, and, in the case of a female, also includes any portion of the breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing.

(c) There shall be no liability on the part of the person distributing material under subdivision (a) under any of the following circumstances:

(1) The distributed material was created under an agreement by the person appearing in the material for its public use and distribution or otherwise intended by that person for public use and distribution.

(2) The person possessing or viewing the distributed material has permission from the person appearing in the material to publish by any means or post the material on an Internet Web site.

(3) The person appearing in the material waived any reasonable expectation of privacy in the distributed material by making it accessible to the general public.

(4) The distributed material constitutes a matter of public concern.

(5) The distributed material was photographed, filmed, videotaped, recorded, or otherwise reproduced in a public place and under circumstances in which the person depicted had no reasonable expectation of privacy.

(6) The distributed material was previously distributed by another person.

(d) In addition to any other relief available at law, the court may order equitable relief against the person violating subdivision (a), including a temporary restraining order, or a preliminary injunction or a permanent injunction ordering the defendant to cease distribution of material. The court may grant injunctive relief maintaining the confidentiality of a plaintiff using a pseudonym as provided in subdivision (f).

(e) The court may also grant, after holding a properly noticed hearing, reasonable attorney's fees and costs to the prevailing plaintiff.

(f) (1) A plaintiff in a civil proceeding pursuant to subdivision (a), may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the plaintiff and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff. A plaintiff who proceeds using a pseudonym and excluding or redacting identifying characteristics as provided in this section shall file with the court and serve upon the defendant a confidential information form for this purpose that includes the plaintiff's name and other identifying characteristics excluded or redacted. The court shall keep the plaintiff's name and excluded or redacted characteristics confidential.

(2) In cases where a plaintiff proceeds using a pseudonym under this section, the following provisions shall apply:

(A) All other parties and their agents and attorneys shall use this pseudonym in all pleadings, discovery documents, and other documents filed or served in the action, and at hearings, trial, and other court proceedings that are open to the public.

(B) (i) Any party filing a pleading, discovery document, or other document in the action shall exclude or redact any identifying characteristics of the plaintiff from the pleading, discovery document, or other document, except for a confidential information form filed pursuant to this subdivision.

(ii) A party excluding or redacting identifying characteristics as provided in this section shall file with the court and serve upon all other parties a confidential information form that includes the plaintiff's name and other identifying characteristics excluded or redacted. The court shall keep the plaintiff's name and excluded or redacted characteristics confidential.

(C) All court decisions, orders, petitions, discovery documents, and other documents shall be worded so as to protect the name or other identifying characteristics of the plaintiff from public revelation.

(3) The following definitions apply to this subdivision:

(A) “Identifying characteristics” means name or any part thereof, address or any part thereof, city or unincorporated area of residence, age, marital status, relationship to defendant, and race or ethnic background, telephone number, email address, social media profiles, online identifiers, contact information, or any other information, including images of the plaintiff, from which the plaintiff's identity can be discerned.

(B) “Online identifiers” means any personally identifying information or signifiers that would tie an individual to a particular electronic service, device, or Internet application, website, or platform account, including, but not limited to, access names, access codes, account names, aliases, avatars, credentials, gamer tags, display names, handles, login names, member names, online identities, pseudonyms, screen names, user accounts, user identifications, usernames, Uniform Resource Locators (URLs), domain names, Internet Protocol (IP) addresses, and media access control (MAC) addresses.

(4) The responsibility for excluding or redacting the name or identifying characteristics of the plaintiff from all documents filed with the court rests solely with the parties and their attorneys. Nothing in this section requires the court to review pleadings or other papers for compliance with this provision.

(5) Upon request of the plaintiff, the clerk shall allow access to the court file in an action filed under this section only as follows:

(A) To a party to the action, including a party's attorney.

(B) To a person by order of the court on a showing of good cause for access.

(C) To any person 60 days after judgment is entered unless the court grants a plaintiff's motion to seal records pursuant to Chapter 3 of Division 4 of Title 2 of the California Rules of Court.

(g) In an action pursuant to this section, the plaintiff shall state in the caption of the complaint “ACTION BASED ON CIVIL CODE SECTION 1708.85.”

(h) Nothing in this section shall be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under Section 230 of Title 47 of the United States Code. Nothing in this section shall be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

(i) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(j) The Judicial Council shall, on or before January 1, 2019, adopt or revise as appropriate rules and forms in order to implement subdivision (f).

Criminal Laws that may apply to drones, RING and surveillance video cameras

Here are some other laws to look at:

• Penal Code Section 646.9: Makes unlawful stalking, or purposefully repeatedly following another person, ()sometimes with malicious intent) or to intentionally cause fear.
• Civil Code Section 3481: Protects against private nuisances, such as the disruptive noise of the blades of a drone near an individual or their house.
• Penal Code Section 647: Law deals with invasion of privacy, especially using technology, including cameras and voice recorders.
• Penal Code Section 632:  Protects privacy regarding eavesdropping or unlawful recording of conversations where the recorded parties did not give consent.
• Penal Code Section 634: Prohibits trespassing on private property and committing, or attempting to commit any act in violation of Penal Code Sections 631, 632, 632.5, 632.6, 632.7, or 636.
• Penal Code Section 646.9: Makes unlawful stalking, or purposefully repeatedly following another person, ()sometimes with malicious intent) or to intentionally cause fear.
• Civil Code Section 1708.8: Prohibits trespassing, (or the physical invasion of privacy), either by entering private land or air space without permission, especially to take images or recordings in an offensive way.

Conclusions / Tips

1. Security cameras can help you feel more secure in your premises but you have to be careful how you are setting them up.
2. If you are setting up your RING doorbell device to peer into your neighbor's front window, or your surveillance cameras are doing this, your neighbor may think you are being a “peeping tom” or are harassing or stalking them, or seeking to obtain video footage of them,
3. While this may seem to be a little “over-the-top” we all know there are people who would take issue at being filmed especially if it is inside their house, or filming of them having fun in their backyards, an area in which many people would probably feel they have a reasonable expectation of privacy.  So, be careful where your cameras are pointing.  If a neighbor asks you to take down your residential or commercial video surveillance equipment, you may want to seek legal counsel from a technology law firm like ours.
4. As for drones, the same rules apply, but you also need to make sure you are complying the FAA rules for unmanned aircraft systems (UAS).  Flying below 400 feet level and making audio or video recordings of your neighbor relaxing in a bathing suit by their swimming pool may constitute a nuisance, stalking, or constitute an invasion of privacy.  Be careful.  You upset the wrong person and you can find yourself in protracted and expensive drone privacy litigation.
5. Think twice (or better yet seek legal counsel) before you EVER even considering distributing such videos (that may invade the privacy of third parties without their consent) on the internet.  Once you post, you may wish you hadn't.  As we like to say, however, You CLICK we DEFEND®

Contact a California Invasion of Privacy Lawyer

If you need help with an invasion of privacy issue call us to discuss your case. We can be reached at (877) 276-5084.  Whether the issue involves Drones, RING doorbell devices, or video surveillance cameras we can analyze your case and determine whether or not you have a case.  We can help both Plaintiff and Defendants.