Are you the victim of someone else posting videos or photos of you online without your consent? Was your privacy violated? The following article provides general information for victims of unauthorized photos and videos, including being a victim of “revenge porn.”
Photos and Videos While Intoxicated
Many people make poor decisions while under the influence of controlled substances. When people are letting loose and partying, they are often not thinking about the consequences. In fact, many people believe it is safe to let loose, especially when they are in the company of friends. Unfortunately, these actions often have unintended consequences.
What would you do if you went to a party with friends and woke up to learn that your drunken antics ended up on the internet or a television clip show? What if the video was posted without your consent? What are your options when you are turned into an “accidental celebrity?”
Accidental Celebrities in the Internet Age
“Accidental celebrities” are mostly the byproduct of the rise of social media where videos can be posted online in a matter of minutes and occasionally go viral on their own. Videos can be posted on the various social media outlets and so long as the video does not violate any of websites’ policies, the videos will be available to watch on demand. Sometimes the subjects of the videos consider the videos private, but in the age of social media, privacy often does not last.
Other times these “embarrassing” and private videos are acquired by media houses. A media house is a company that specializes in buying up videos that are likely to go viral. When a media house finds a video it would like to acquire, it negotiates with the person in possession of the video to obtain the rights to the video, although there is not always payment made. After the media house makes a deal to obtain the rights to the video, which is usually with the person who shot the video, it can license the video to various media outlets, including shows that specialize in “embarrassing” videos for entertainment. Once this process is done, the videos are made public and can be aired both online and on television.
Between camera phones, the internet, and television people are easily being turned into “accidental celebrities” and recourse can be limited for those who are launched into this role. One of a few options available is to make a claim of invasion of privacy.
Minnesota Civil Law
Prior to 1998 Minnesota did not recognize a right to privacy. In 1998 that changed when a when a Walmart employee showed private nude photos of a patron’s vacation after the store told the patron they were unable to develop the photos. The patron sued Wal-Mart under an invasion of privacy tort, asserting the employee invaded the patron’s right to privacy when the employee took private photos and showed them to people in town.
As a result of the Walmart lawsuit, Minnesota recognized, for the first time, three right to privacy torts:
- intrusion upon seclusion
- appropriation
- publication of private facts
Of the three invasion of privacy torts in Minnesota, only intrusion upon seclusion applies to a private location. The other two torts deal with the general use of someone’s likeness without their permission. All three of the invasion of privacy torts could be claims for the “accidental celebrity.” Determining which of the three invasions of privacy torts to bring an action under would be dependent on where the invasion privacy occurred.
Minnesota Criminal Law
In addition to the civil claims of invasion of privacy, there is also criminal interference with privacy. A section of a Minnesota statute imposes gross misdemeanor penalties for specific acts of invasion of privacy. The statute prohibits entering another’s property and surreptitiously gazing, staring, or peeping in the window or any other part of a house or place of dwelling with the intent to intrude upon or interfere with the privacy of a member of a household. The statute also restricts the photographing, observing, recording, amplifying, or broadcasting sounds or events with the intent to interfere or intrude upon the privacy of a member of the household. Minnesota statute defines household as:
- spouse and former spouse;
- parents and children; persons related by blood;
- persons who are presently residing together or who have resided together in the past;
- persons who have a child in common regardless of whether they have lived together at any time; a man and women if the woman is pregnant and the man is the alleged to be the father, regardless of whether they have been married or lived together at any time; and
- persons involved in a significant romantic or sexual relationship.
What the statute means for the “accidental celebrity” is if there was intent by the person taking the video to intrude upon or interfere with the right to privacy of a member of a household, then the violated person could seek criminal charges.
Federal Law
Minnesota “accidental celebrities” may be able to sue for invasion of privacy or seek criminal charges, as well as seek protection under federal law. In 2004, Congress passed the Video Voyeurism Prevention Act to protect people from being victimized by the use of camera phones. However, the Act only protects those in situations where the video is of the private areas of the individual. “Private areas” include naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual. The female breast portion does not include cleavage shots. What this Act means for the “accidental celebrity” is if the invasion of privacy occurred via the use of a camera phone and the video meets the criteria set forth in the Act, then the “accidental celebrity” can bring a civil lawsuit against the person who shot the video without consent.
Your Consent to Recordings
While there is recourse for the “accidental celebrity” if the criteria is met, a lack of consent is not one of the recourses available in Minnesota. Minnesota is a one-party consent state. This simply means that a person can record video or audio, of another person, so long as it does not violate Minnesota’s privacy laws or is done with the intent to commit a tortious or criminal act. Returning to the video taken at a party scenario, a person at a party does have rights, but only if the party is at his or her house. Unfortunately, a guest at a party is not extended an expectation of privacy at someone else’s home. What it means for the “accidental celebrity” is that he or she may only have privacy rights if they are the person hosting the party and the person who took the video had the intent to violate the host’s or household member’s privacy when they entered the party.
Regrettably, at this time, the law does not leave many options for “accidental celebrities.” However, an “accidental celebrity” can sometimes negotiate to have the video removed from the internet or taken down from someone’s social media page. Convincing someone to remove a video can be difficult because of Free Speech rights. Due to freedom of speech and freedom of expression people can express their thoughts without recourse, unless their actions fall under unprotected speech. As it currently stands, there is no law asserting that videotaping someone without their consent is not protected speech. If the video was not made in an unlawful manner, there may be very little bargaining power to get the video removed.
Can You Stop Someone From Posting a Picture or Video of You Online?
In the age of the internet and sharing social media it has become a growing concern that some people will take a photograph or video of another and then post it online. Does posting the picture or video violate the subject’s privacy?
The first question to ask in determining if there has been a violation of the law is to determine if there is an expectation of privacy.
In Public
As a general rule, if you are on public property such as a street, sidewalk, city park, etc., there is no expectation of privacy and if you see someone who is drunk, getting arrested, or brawling, you are free to take photographs of what you see.
However, just because it is a “public” place, does not mean that no expectation of privacy exits. Stalls in public bathrooms, changing rooms, etc., are places where people would have an expectation of privacy even though they are outside of their home and at a public establishment.
In Private
It is a little trickier to determine if someone has an expectation of privacy when you are at someone’s private home or at a private event. If there are no rules or regulations about photographs and everyone at the venue or in the home has their phones out and are taking pictures, it would be hard to argue that anyone present would have an expectation of privacy.
Some private events have very strict rules allowing no cameras or photography (e.g., some of the Oscar after-parties have these restrictions). Someone attending that party would have an expectation of privacy.
What If I Expected the Photo Would be Private When It Was Taken?
If a picture or photograph is taken of you when you had an expectation of privacy, you could bring an action for “invasion of privacy.” Minnesota recognizes three of the four types of invasion of privacy claims:
- Intrusion upon seclusion,
- Appropriation, and
- Publication of privacy facts.
Minnesota has declined to recognize “false light publicity,” the fourth type of invasion of privacy, stating that its damages are covered in civil defamation cases.
The claim for invasion of privacy was not recognized in Minnesota until the case of Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998). Justice Blatz stated, “[t]he right to privacy is inherent in the English protections of individual property and contract rights and the ‘right to be let alone’ is recognized as part of the common law across the country.”
Damages
Even though it has been 17 years since the Lake case, there is not much guidance on what damages can be recovered. The Restatement (Second) of Torts §652H states,
One who established a cause of action for invasion of privacy is entitled to recover damages for
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.
Minnesota has not adopted this section. However, there is nothing to suggest that the court would not consider the intrinsic value of one’s privacy and note that economic damages will not always be suffered.
