A.R.S. 13-3019. Surreptitious photographing, videotaping, filming or digitally recording or viewing; exemptions; classification; definitions. If you have been filmed, taped, or photographed without your consent you may be entitled to monetary damages!
Introduction – Digital Pranks can backfire legally!
In today's digitally connected internet world, you have to teach your kids to be careful what they are shooting, filming, taking photos of, and how they are using Drones in everyday life.
Where a “reasonable expectation of privacy” exists the Courts may recognize that shooting and posting videos online, including private photos, revenge porn (ex. ex-girlfriend photos), photos of kids, and other content might actually be against the law despite arguments of “free speech” and “first amendment” and I was just “posting a news or public affairs” story.
Improperly shooting videos on iPhones, Android, Drones, or other devices and distributing improper digital content online can lead to serious legal liability and potentially claims of right of publicity violations and invasion of privacy claims where content is posted to internet websites such as instagram, twitter, facebook, youtube, pinterest, and other social media networks. This blog explores Arizona's state laws on this topic.
Arizona Invasion of Privacy Torts
In Godbehere v. Phoenix Newspapers, Inc., 155 Ariz. 389, 390, 746 P.2d 1319, 1320 (Ct. App. 1987), vacated, 162 Ariz. 335, 783 P.2d 781 (1989) the Arizona court noted: “Arizona first recognized a cause of action for invasion of privacy in Reed v. Real Detective Publishing Co., 63 Ariz. 294, 162 P.2d 133 (1945). Later decisions of this court have recognized Professor Prosser's classification of the tort into four separate causes of action as follows: 1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs. 2. Public disclosure of embarrassing private facts about the plaintiff. 3. Publicity which places a plaintiff in a false light in the public eye. 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.” [See our Right of Publicity videos] See Cluff v. Farmer's Insurance Exchange, 10 Ariz.App. 560, 563, 460 P.2d 666, 669 (1969) (citing Prosser, Privacy, 48 Cal.L.Rev. 383 (1960)). See also Rutledge v. Phoenix Newspapers, Inc., 148 Ariz. 555, 715 P.2d 1243, (App.1986); Davis v. First Ntl. Bank of Arizona, 124 Ariz. 458, 605 P.2d 37 (App.1979). Attorney Steve Tip: Note that some of these causes of action can be countered with a FIRST AMENDMENT DEFENSE.
Attorney Steve discusses First Amendment and potential exceptions to Free Speech!
VIDEO: Click on the picture above to watch the video and learn something you probably DID NOT KNOW about the First Amendment to the United States Constitution.
Arizona Illegal Filming and Photography laws
A. It is unlawful for any person to knowingly photograph, videotape, film, digitally record or by any other means secretly view, with or without a device, another person without that person's consent under either of the following circumstances:
1. In a restroom, bathroom, locker room, bedroom or other location where the person has a reasonable expectation of privacy and the person is urinating, defecating, dressing, undressing, nude or involved in sexual intercourse or sexual contact.
2. In a manner that directly or indirectly captures or allows the viewing of the person's genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public. [ex. Up-Skirt video / photos]
B. It is unlawful to disclose, display, distribute or publish a photograph, videotape, film or digital recording made in violation of subsection A of this section without the consent or knowledge of the person depicted.
Pursuant to A.R.S. § 12-731(A):
“any person whose wire, oral or electronic communication is intentionally intercepted, disclosed or used in violation of [A.R.S. § 13-3001? § 13-3019] may bring a civil action to recover from the person or entity that engaged in the violation.”
A.R.S. 12-731(A) – Civil Damages
12-731. Recovery of civil damages
A. Except as provided in title 13, chapter 30, any person whose wire, oral or electronic communication is intentionally intercepted, disclosed or used in violation of title 13, chapter 30 may bring a civil action to recover from the person or entity that engaged in the violation the following:
1. Such preliminary and other equitable or declaratory relief as may be appropriate.
2. Damages in an amount that is the greater of either:
(a) The sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation.
(b) Statutory damages of one hundred dollars a day for each day of the violation.
(c) Statutory damages of ten thousand dollars.
3. Punitive damages in appropriate cases.
4. Reasonable attorney fees and other reasonable costs of litigation.
B. A civil action under this section may not be commenced later than one year after the date upon which the plaintiff first has a reasonable opportunity to discover the violation.
If you feel this section has been violated, call us to discuss your legal rights. As noted above, you have to act fast as the statute calls for a one year statute of limitations.
13-3019 C. This section does not apply to:
1. Photographing, videotaping, filming or digitally recording for security purposes if notice of the use of photographing, videotaping, filming or digital recording equipment is clearly posted in the location and the location is one in which the person has a reasonable expectation of privacy.
2. Photographing, videotaping, filming or digitally recording by correctional officials for security reasons or in connection with the investigation of alleged misconduct of persons on the premises of a jail or prison.
3. Photographing, videotaping, filming or digitally recording by law enforcement officers pursuant to an investigation, which is otherwise lawful.
4. The use of a child monitoring device as defined in section 13-3001.
ATTORNEY STEVE TIP: Note that there are no special exemptions for the Use of Drones that might fly over a neighbors house and take pictures of a nude sunbather or woman in a bikini for example. Be careful using drones or you can find yourself in legal trouble even if you are posting photos of your hot neighbor for fun or as part of a prank or to try to build your youtube channel with outrageous private videos.
What are the penalties or violations for violating the Arizona unlawful filming and photography laws:
A.R.S. 13-3019 D
A violation of subsection A or B of this section is a class 5 felony.
E. Notwithstanding subsection D of this section, a violation of subsection A or B of this section that does not involve the use of a device is a class 6 felony, except that a second or subsequent violation of subsection A or B of this section that does not involve the use of a device is a class 5 felony.
F. Notwithstanding subsection D of this section, a violation of subsection B of this section is a class 4 felony if the person depicted is recognizable.
G. For the purposes of this section, “sexual contact” and “sexual intercourse” have the same meanings prescribed in A.R.S. 13-1401.
[Jury instructions] Arizona Surreptitious Recording
TO find you guilty of a crime, the state prosecutor must prove each of the following elements ( beyond a reasonable doubt): (1) The crime of surreptitious [recording] [viewing] requires proof that the defendant knowingly [photographed, videotaped, filmed, digitally recorded or by any other means used a device to secretly view or record] [secretly viewed, with or without a device,] another person without that person's consent: (2) While the person was in a restroom, bathroom, locker room, bedroom or other location where the person had a reasonable expectation of privacy; and (3) The person was urinating, defecating, dressing, undressing, nude or involved in sexual intercourse or sexual contact. (4) When the viewing was in a manner that directly or indirectly captured or allowed the viewing of the person's genitalia, buttock or female breast, whether clothed or unclothed; and (5) The person's body part was not otherwise visible to the public.
How does A.R.S 13-1424 compare
Under A.R.S. §13–1424, it is a criminal offense to “ knowingly invade the privacy of another person without the knowledge of the other person for the purpose of sexual stimulation.” Subsection C defines an invasion of another person's privacy as follows: For the purposes of this section, a person's privacy is invaded if both of the following apply: 1. The person has a reasonable expectation that the person will not be photographed, videotaped, filmed, digitally recorded or otherwise viewed or recorded; 2. The person is photographed, videotaped, filmed, digitally recorded or otherwise viewed, with or without a device, either: a. While the person is in a state of undress or partial dress. b. While the person is engaged in sexual intercourse or sexual contact. c. While the person is urinating or defecating. d. In a manner that directly or indirectly captures or allows the viewing of the person's genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.
See State v. Gongora, 235 Ariz. 178, 179-80, 330 P.3d 368, 369-70 (Ct. App. 2014).
Illegal videotaping at Sharp Grossmont Hospital (Sharp Healthcare) in San Diego in 2019?
New allegations of breach of patient privacy and illegal video recording in are being filed in legal action against Sharp Grossmont Hosptial in San Diego, California. The lawsuit was originally filed a couple year back but the judge denied class action certification. The case is pending in Superior Court in San Diego. Filed Mach 29, 2019.
According to the suit, the illegal video recording occurred from approximately July 17, 2012, to June 30, 2013, (roughly 1,800 women were apparently alleged to have been recorded in the three operating rooms at the hospital's women's center). The case alleges causes of action for:
- Breach of Fiduciary Duty
- Invasion of Privacy – Intrusion into Private Affairs
- Negligent Infliction of Emotional Distress (“NIED”)
- Unlawful Recording of Confidential Information – California Penal Code 632 and 632.7
If you feel you might have a case, call us for a free initial evaluation at (877) 276-5084.
Arizona Illegal Filming of Law Enforcement Activities (the 8-foot rule)
California Illegal Recording Law – Penal Code 632
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Contact a California and Arizona Invasion of Privacy Attorney
If you have been a victim of illegal tape recording or have had your photo used in ways you did not consent to, call us for a free discussion. We can discuss your legal rights. In some cases of revenge porn, or posting private photos and videos on the internet, you may be entitled to monetary damages. Call to speak with an internet privacy lawyer at (877) 276-5084.
Your call is 100% confidential whether you retain us or not. These types of cases can possibly be taken on a “contingency fee” basis, which means if we do not recover, you do not pay us a dime. Call for more information.