Rule 7 Quiz: Snap and Record
Click on each possible answer for an explanation of the risk.
Your town’s Board of Education is proposing a 20% increase in the school budget, claiming teachers and administrators are terribly underpaid. You’ve seen your district’s superintendent driving around in a Porsche and you decide to create a photo feature documenting what appears to be an extravagant lifestyle. Which of the following is legally troublesome?
1. You photograph him in front of his Porsche feeding a parking meter.
No problem. The municipal parking meter is in a public place and so are you. There would be no trespass or intrusion, so click away.
2. You stand on a public sidewalk and photograph him leaving a district building with an independent school consultant who is camera shy and very offended that you’ve taken the photo.
Too bad for the district consultant. The exterior of the district building is a public place and you can feel comfortable taking the photo. Any possible intrusion claim would be defeated because you’re not intruding on a place where he would have a reasonable expectation of seclusion. Any claim for unreasonable publication of private facts would be defeated by the exception for newsworthy information. Now, if you published the photo with a caption that falsely said, “District Superintendent Gets Kickbacks From Top Earning Consultant”, you’ve got potential libel and false light claims against you, from both the superintendent and the consultant. To win, they’d have to prove the caption was false and that you were at fault for making the error.
3. You rent a boat and drop anchor opposite his home. From that vantage point, you are able to train your telephoto lens on the superintendent’s kitchen window and photograph him eating a sandwich.
You’re in hot water on this one. Unless you’re actually invited in with your camera or you’ve got consent, you should not be aiming to capture someone’s image while they’re in a private home. Taking the photo could be considered an invasion of privacy in the form of an intrusion upon seclusion and posting it could be an unreasonable revelation of private facts.
In addition to the privacy law implications, you also may find yourself reckoning with trespass and anti-stalking laws.
4. You phone the superintendent for an interview and, unbeknownst to him, you record the conversation.
The level of legal risk depends upon the state you’re calling from and the state in which the superintendent is receiving the call. Some states allow a party to a conversation to record that conversation without notice to the other party. Other states require that all parties to a recorded conversation consent prior to recording. Consent may be as simple as your saying, “Is it O.K. if I record the call?” or “I’d like to tape this,” before you begin taping. If the interviewee doesn’t object, start the tape. To be safe, record words from the start indicating that the source knows the tape is running, such as, “O.K. I’ve started recording,” or, “The tape is running now.”
5. You have the school consultant, who has now become your best source, secretly record a conversation between the superintendent and the district’s high school principal and bring you the recording.
Bad idea. Regardless of which state you’re in, when a third party records a conversation between participants without their consent, there’s a legal problem under both federal and state laws. Also, if you’ve encouraged the illegal recording, you’re at legal risk along with the consultant.
6. You put on a wig and sunglasses and go down to the superintendent’s office, pretending to be a parent upset about a teacher’s conduct. You’re escorted into the superintendent’s office and, while waiting for him, you take out your cell phone and use it to take photos of documents on the superintendent’s desk. The superintendent arrives and dismisses you quickly by announcing that you should be discussing any issue with a teacher or with your child’s school principal.
This is an exercise in undercover reporting and your lying to gain access to the superintendent’s office and photographing documents are highly problematic. Depending upon the state, there could be trespass, privacy, fraud, misappropriation, theft, and a laundry list of other potential laws that may have been broken in your quest for information. Any undercover reporting should be carefully vetted by a lawyer for its legality prior to your engaging in surreptitious or unconventional reporting tactics.
On to Rule 8 or return to Rule 7.
(c) Geanne Rosenberg
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