A
Person May Be Liable for Invasion of Privacy for Attempting to
Capture
an Image of Someone Engaging in a Personal or Familial Activity
09/04/05
Dear
Mr.
Duman:
I was in
the
middle of my aerobics workout in my backyard a few weeks ago, when I
was
shocked to notice that my neighbor was standing on his
balcony, about one hundred feet away, taking
photos of me with what looked like a telephoto lens. I yelled to him
that I did
not want him taking my photo, and that I considered his conduct to be
an
invasion of my privacy.
He just
laughed and told me that as long as he was on his own property, he
could take a
photo of whatever he wanted.
Can he
legally take photographs of me like that?
J.
T., Montclair
Dear
J. T.:
Your neighbor
is incorrect. His photographic
intrusions may incur liability for him.
Specifically,
California Civil Code, Section 1708.8(b) provides that:
“A person is
liable for constructive invasion of privacy when the defendant 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 personal or familial activity under circumstances in
which the
plaintiff had a reasonable expectation of privacy, through the use of a
visual
or auditory enhancing 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 visual or auditory
enhancing device was used.”
Further,
Civil Code, Section 1708.8(h)
expressly states that it is not a defense to a violation of its
provisions that
no image, recording, or physical impression was actually captured or
sold.
Under this
law, a person, who commits physical or constructive invasion of privacy
can be
held civilly liable for “up to three
times the amount of any general and special damages that are
proximately caused
by the violation...”. Punitive damages
may also be awarded under the statute, where the guilty party’s conduct
is
shown to have been particularly outrageous.
Additionally,
if the plaintiff proves that the invasion of privacy was committed for
a
commercial purpose, the statute provides that defendant “shall also be
subject
to disgorgement to the plaintiff of any proceeds or other consideration
obtained as a result of the violation...”.
Other
equitable relief may also be awarded to the plaintiff, including, but
not
limited to, an injunction and restraining order against further
violations. The law specifically states
that the remedies provided for under the statute are in addition any
other rights
or remedies of a plaintiff, which may concurrently exist under other
theories
of law.
The
law, however, limits its application in that its provisions are not
intended to
“impair or limit any otherwise lawful activities of law enforcement
personnel
or employees of governmental agencies...”, to the extent such
activities are
otherwise allowed by law.
Readers with
questions regarding invasion of privacy and the rights set forth under
this law
should consult directly with an their own attorneys for guidance and
specific
attention.
FD760 8/26/05
4\column\privacy2.law
Readers may address their
questions to The Real Estate
Lawyer, Fred M. Duman, 2807 Castro Valley Boulevard, Castro Valley, California
94546. Mr. Duman will answer those of
general
interest in his column. He reserves the
right to edit the letter for brevity and clarity.
Each real estate problem
usually has its own distinct
circumstances, and frequently is more complicated than realized by a
layperson. Readers are also encouraged
to consult with their own lawyers to obtain guidance concerning their
problems
when they first arise.
Readers are cautioned that
these answers are not intended
to be the basis for any action or reliance by the reader.
You are welcome to
visit our web site at “www.dumanlaw.com”.
© 2005, Fred M. Duman All Rights Reserved. Please see our disclaimer.
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