Rule 7. Learn Recording Limits

When it comes to rights and risks relating to taping, recording and photographing, here’s the breakdown for citizen journalists:

Private property, such as homes, businesses, privately owned buildings, acreage, and facilities, are generally off limits without consent from someone authorized to give it. Even entering private property on a “ride-along” with law enforcement officers can cause legal trouble for journalists and others. Those who intrude into private space without permission from someone with the authority to provide consent may be taking on civil and criminal legal risk. Infractions can include trespassing, intrusion-related privacy violations, and sometimes even harassment or stalking.

Citizen journalists are usually in the clear in “public forums,” which include public gathering spaces and thoroughfares such as sidewalks, parks and streets. These locales are generally freely available for photography, videotaping and other forms of recording. (Here’s an excellent resource from the Reporters Committee for Freedom of the Press on access to public and private places.)

Government authorities can restrict access to such public places to keep order or maintain public safety. But the burden is on government to prove that any so-called “time, place and manner” restrictions are necessary. Government cannot selectively ban citizen journalists or other news reporters if the general public is allowed access.

Have a battle plan in the event that access is denied, advises the Reporters Committee for Freedom of the Press. If you’re shut out, gather as much information as you can about what’s happening, a Covington & Burling memo for the National Press Photographers Association advises. You’ll want to find out the scope of the ban, the reason, the names of officers or officials involved, your location and the location of others affected, and the time of the event. This information can help you pursue legal claims and remedies later.

Many public properties such as schools, government office buildings, airports, prisons and military facilities do not qualify as public forums and you cannot presume a right of entry or access and can be legally kept out. If you disobey instructions and sneak in, you may be in violation of criminal trespass law.

Both the National Press Photographers Association and the Reporters Committee for Freedom of the Press advise that news photographers who plan to gather information or photos in such places can avoid problems by working out acceptable access in advance with government personnel. This may be a greater challenge for bloggers and citizen journalists who do not have press credentials. You can seek advance permission and clearance, or, if it’s a facility that’s generally open to the public, enter and begin your activities, but follow instructions if asked to cease recording or to leave.

Whether you’re in a public or nonpublic forum, you have important civil rights that can be implicated should anyone acting outside of the authority of a court of law force you to surrender or destroy your notes, camera, video, or recording.

Photographing or taping someone in a private setting can be an unreasonable intrusion on seclusion and in some states can give rise to a legitimate privacy claim, even if you never publish the images or words you’ve captured. To win such a claim, a plaintiff has to show there was a highly offensive intrusion.

Intrusion doesn’t necessarily mean trespassing, but rather means violating someone’s reasonable expectation of at least limited privacy. The interior of a medical evacuation helicopter was found to give a patient in a California case an expectation of privacy. California’s highest court also found, in another leading intrusion case, that an office setting with about 100 cubicles, though not completely private, provided an expectation of limited privacy.

In the office case, a telepsychic was found to have a valid claim because, even though his conversation was in earshot of co-workers, the court said he had a right to expect his words would not be covertly recorded. Partly because of risk of intrusion claims, undercover reporting and the use of hidden cameras and recording equipment are fraught with legal risk and should not be undertaken without an experienced media lawyer’s advice.

Publishing embarrassing information, including images, video, audio, and/or text, can support another sort of privacy claim — unreasonable publication of private facts. But there’s an important exception for newsworthy information. That helps explain why embarrassing information can be published about celebrities and public figures with less worry about legal risk. (See also, Rule 1for information about false light claims under privacy law. Such claims concern a plausible factual misrepresentation, such as a photo of an innocent chef with a knife posted above a caption about a slasher on the loose.)

In terms of recording of conversations, some states within the U.S. are one-party states that allow a person who is a party to a conversation to record that conversation without the knowledge of other participants. Other states are all-party states that require that all parties to a conversation know about or consent to any taping. Eavesdropping and surveillance can also lead to criminal and civil sanctions. (The Reporters Committee for Freedom of the Press has an excellent state-by-state guide on taping laws.)

If you’re using someone’s image or name or persona in a commercial context, such as to advertise your EBay store, you need to also worry about whether you’re violating that individual’s right of publicity.

Depending upon the situation, get written consent, in the form of signed releases, from photo and video subjects. If your news images are taken out in public, where your subjects have no reasonable expectation of privacy, you generally won’t need written consent. However, even for photos taken out in public, for identifiable individuals, you should get written consent before publishing embarrassing images; images revealing personal and non-newsworthy information; and images you might use in some commercial way, such as a person’s face on a mug or in your product launch advertising campaign.

With respect to children, special privacy and consent considerations can apply. The rules in this area aren’t always clear, as indicated by a Reporters Committee for Freedom of the Press response to a question about interviewing children.

Adding to the uncertainty and concern for Web site operators is a relatively new federal law, the Children’s Online Privacy Protection Act, which regulates online collection and publication of identifying information about children under the age of 13. Some news organizations recognize an ethical obligation to protect children’s privacy and require a journalist to seek consent from a child’s parent or legal guardian before interviewing or photographing a child, particularly about a sensitive subject. The Orlando Sentinel’s Code of Ethics provides:

Children. Reporting on children poses special challenges. Children often are eager to talk and be photographed, but they may have no idea of the potential consequences of having their names, pictures and words in the newspaper, on the Web or on television. Whenever possible, we should seek the approval of parents before interviewing, photographing or filming a child — especially when dealing with sensitive topics. Whether we have permission or not, we must always be mindful that children are not responsible for their words or actions in the same way adults are.

National Public Radio has its own published policy mandating special care when interviewing minors:

[A]n interview of a minor about a sensitive subject requires an NPR journalist to secure permission from the minor’s parent or legal guardian… Examples of sensitive subjects include cheating, sexual activity, involvement in gangs or crime, difficult family relationships, probation violation, out-of-wedlock pregnancy or parenthood, victims’ sexual abuse and similar topics that could have legal ramifications or lead to embarrassment. An interview of a minor in a special custodial situation, such as foster care, juvenile detention, or holding facilities for illegal immigrants, requires the consent of the person who has custody of the minor. Utah also requires the consent of both the custodian of the juvenile facility and the minor’s parent.

NPR also says interviews with minors on school property generally require consent from school authorities.

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