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Photographic Privacy: Can You Take That Picture?

Whitney O’Sullivan

Photographic Privacy: Can You Take That Picture?

In the age of the Internet and all things public, it might feel like your right to snap photos anytime is absolute. But is it? Let’s take a look the issues surrounding privacy in regards to photography and videography.

Intrusion Upon Seclusion

Contrary to what popular photo sharing programs like Facebook, Imgur, and Snapchat might lead you to believe, a number of state laws are specifically designed to protect against unwelcome photographic intrusion into personal affairs. Check your jurisdiction, but typically, if you intentionally intrude on a person’s private affairs and a reasonable person would find your intrusion offensive, then it is not ok.

The problem with this definition is that states often have trouble agreeing on when there is an expectation of privacy. Do you have an expectation of privacy at home? At work? At school? In public?  And what can be done with any images that are taken? It depends.

Do you have an expectation of privacy at home? At work? At school? In public?

As you might have guessed, the expectation of privacy is highest when at home. Our homes are our sanctuary, and the law recognizes this. This expectation is virtually absolute when we are inside, and especially when curtains are drawn and we’ve taken steps to keep the public eye out. Devices that enhance the ability to see onto your property such as magnifying lenses, highly sensitive microphones, or other enhanced technologies cannot be used to capture pictures, videos or sounds. The expectation of privacy falls slightly when you walk outside; aerial views and images of you on your property are legal, so long as the photographer did not need to trespass to obtain them.

At work, your expectation may be dictated by the employee handbook, office layout, or even prior consent. Depending on the expectations your company sets, everything may be fair game. Private companies are (mostly) free to do as they please, and may not guarantee privacy anywhere within their walls. As such, photos and video surveillance may be allowed.

In school, while many parents might be uncomfortable with other students or teachers photographing their child, it is not inherently illegal. The use of such photographs, like all others, will be limited by purpose, but taking the images generally is not.

Public places have the lowest levels of protection. Generally, everything is fair game. That said, videotaping and publishing images solely to cause embarrassment or to expose conversations reasonably believed to be private by the participant (i.e. with a paramedic after an accident) are still likely protected. When in doubt, assess the situation as a whole, and try to put yourself in the subject’s shoes.

Before you go capturing an image, consider where you are, what you had to do to get the perfect shot, and how likely it is that the image(s) may cause the subject distress.

Before you go capturing an image, consider where you are, what you had to do to get the perfect shot, and how likely it is that the image(s) may cause the subject distress.

Appropriation

Even if you’ve taken image that doesn’t violate anyone’s reasonable expectation of privacy, you can’t use them for commercial purposes without authorization.

As we previously discussed, using an image without express consent and understanding from the subject may leave you open to legal liability. This applies to photographs you took, were given, or found on the Internet. (Internet finds come with a whole slew of other issues, and any reproduction or use should generally be avoided.)

There is one caveat to the general rule of against appropriation: journalists may use their images for newsworthy purposes. While police or other interest groups may discourage photography they fear will be published, they cannot actually prevent it.

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If you want to use your images for commercial purposes such as advertising, be sure to get the proper release, in writing, from the subject or legal guardian.