This section of the legal guide highlights the legal and practical issues you may encounter as you gather documents, take photographs or video, and collect other information. Many of the subjects discussed in this section are relevant whether or not you eventually publish the information you gather. (See the section on Risks Associated With Publication in this guide for information on your potential liability when publishing.)
So, where to start?
This section provides an overview of the laws that govern your right to access different types of public and private property.
While the First Amendment protects your right to engage in speech, it does not grant you unfettered access to the property of others. You should always keep in mind that your right of access is no greater than the public's right of access. In general:
Even when you have a right to access property, however, you may be asked to leave by law enforcement or the owner of the property. In these situations, it is important that you understand your rights ahead of time. You should read the relevant local statutes, familiarize yourself with the common law, and perhaps contact the police and other government offices in the area to better understand your right to access different locations.
Generally speaking, government officials and persons in possession of private property are the only figures who can restrict your access to property. If one of these figures asks you to leave a place that you believe you have a right to access, you should explain why you have the right to stay. They may tell that current circumstances are an exception, or you may be able to convince them to let you stay. In any case, you must take care—you can be charged with trespass for remaining if you do not have a right to remain there.
Depending on the type of property you will be entering, you should review the section on:
The U.S. Constitution protects your right to speak and, in some instances, grants you a right to access public places to gather information. Your right to access public property is not absolute, however. Generally speaking, you have the same right of access to public property as the general public.
This section covers your access to public (i.e. government-owned) property. (Refer to the section on Access to Private Property for more information on entering privately owned property.) Not all government-owned property is open to the general public. Depending on the type of property you wish to enter, your right to access public places may be constrained by reasonable time, place, or manner restrictions, or by the government's interest in managing its property.
Here is an overview of the three types of public property you are most likely to encounter:
Property That Historically Has Been Open to the Public
Your right to access public property is strongest when the area you wish to access has historically been open to the public for the exercise of speech, public debate, and assembly. These areas are known as public forums and include spaces such as sidewalks, parks, and town squares. You may freely enter and gather information while in these public spaces, but you should do so without disturbing the peace or interfering with those around you. Your right of access does not confer immunity from all liability if your conduct is disruptive or harassing.
Property That Is Open to the Public for a Limited Purpose
Your right to access government-owned property that is only partially open to the public is a bit more limited. If the general public is permitted to access only certain areas or for certain limited purposes, you right to access the property for newsgathering purposes is similarly limited. For example, some parts of a courthouse are open to the general public, but portions of the courtrooms themselves are accessible only by the parties in the litigation and judges' chambers are completely off limits to the public.
However, some public property, even though it is open only for limited purposes, can take on the attributes of a public forum discussed above. A classic example of this type of property is public schools and universities. Although public school and university buildings are not wholly open to the public, some parts of a campus may be considered a public forum. If a school's large open quad is accessed from public sidewalks and streets and freely used by the general public with no apparent objection from the school administration, then the quad may be considered "dedicated" to public use, and therefore more like the traditional public forums of the public park and sidewalk. Additionally, if the school opens certain of its rooms for non-school meetings that are open to the public, those rooms, during those times, will be treated as public forums.
Remember that because public schools are not entirely public forums, school administrators often have the discretion to restrict the entry of outsiders, particularly while the school is in session. Check in with the school administration before entering school grounds or you may be liable for trespass. Additionally, some states laws prohibit people from loitering within a certain distance while school is in session. These "school loitering laws" are mainly aimed at keeping sexual predators and drug dealers away from schoolchildren, but be aware that their language may be broad enough to cover lawful or innocent activity as well.
Property That Is Not Open To the Public
You cannot access or gather information on government-owned property that is not open to the general public. This type of property is known as a nonpublic forum in which the government can charge you with trespass if you enter without authorization. The following are examples of nonpublic forums:
You may wish to access another's private property in order to gather information to publish online. However, while there are (rare) circumstances in which the law will condone your entry onto private property without permission, in general you do not have any right to enter the private property of others without their consent. You should read this section in conjunction with the section on Trespass in order to understand the issue of consent.
Residences: The term "private property" encompasses a wide variety of places, from homes to businesses open to the public. Courts are highly unsympathetic to those who try to gather news in private homes without consent, and if you enter a private home without permission, you may be liable for invasion of privacy, trespass and, in certain cases, intentional infliction of emotional distress.
In the 1940s, the Supreme Court took on the issue of "company towns" with regard to the First Amendment. Although the company town was private property owned by the company, the fact that it had been opened up to use by the public generally made it subject to the constitutional requirements of the First Amendment. Marsh v. Alabama, 326 U.S. 501 (1946).
Today, there are fewer company towns; however, private, gated residential communities may occupy a similar niche. Visitors seeking access to a private residential community must usually announce themselves at the gate or receive permission from the development's security guards in order to enter. It's often a wise idea to seek permission before entering such a community. But even if you do not express permission, your right to access will be strongest if the private residential community opens its gates to the public at large. See the section on Access to Public Property in this guide for more information.
Businesses: If you try to access businesses that do not open themselves up to the public, you may be liable for trespass. However, as a member of the public you will be able to access businesses open to the public without fear of liability. Your right of access does not necessarily translate into a right to gather information while you are there. The business has given you consent to use the premises as a patron, and your actions need to be within the scope of that use.
For example, a restaurant consents to your presence for you to enjoy eating a lovely meal in the company of good friends. In this scenario, taking notes about the food, ambiance, and service may be fine, whereas approaching other diners for interviews or for photographs likely oversteps the scope of the restaurant's consent, and you could be liable for trespass. See the Trespass section in this guide for more information. Note that you may only access the areas of the business that are open to the public. Continuing our example, while you can enter a restaurant, you cannot go to the kitchen without additional permission.
Shopping malls have come to occupy a place in modern communities akin to the town square or main street and thus are arguably public, rather than private, in nature. But unlike the traditional public forum of a town square, these establishments are privately owned places of business. Since the Supreme Court's decision in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), stating that there is no constitutional right to free speech in a private shopping mall, the law of access to shopping malls has largely been left to the states. State courts vary on the question of whether to allow access to shopping malls. Those that do find them to be public or quasi-public forums still note that owners may impose reasonable time, place and manner restrictions on expression, provided the regulations are content-neutral, narrowly tailored, and leave open sufficient alternative channels of communication.
If you want to go to a shopping mall and gather information, try to avoid disrupting business activities. For example, it would be better to approach people walking in the corridors of the mall, or in the food court, than to station yourself at the door of a store and attempt to talk to everyone entering or exiting.
You may be invited by law enforcement or other government officials to accompany them while they perform their duties. These types of situations are called "media ride-alongs" and can be a great way to gather information about how public officials handle their work. However, ride-alongs may take you to events occurring on private property. The Supreme Court has held that accompanying police in their execution of an arrest warrant in a private home may make you liable for trespass. See Wilson v. Layne, 526 U.S. 603 (1999).
The Reporters Committee for Freedom of the Press has a terrific overview on how courts have treated trespass issues in media ride-alongs. The issue is complex. As a rule of thumb: if you are invited on a media ride-along and enter private property, you should get consent for your presence from the person in possession of the property. Additionally, you should note that depending on the circumstances, your presence may jeopardize an investigation. Thus, do not be surprised if your local law enforcement authorities prohibit media ride-alongs altogether.
If you enter private property without the owner's permission or enter portions of public property that are off limits to the public, you could be liable for civil or criminal trespass. For example, you may not walk into your neighbor's house uninvited, sneak into your congressperson's office, or pretend to be a public official to gain access to someone else's property.
In general, if you are invited onto someone's property or otherwise have permission to be on the property, you will not be considered a trespasser. If you are asked to leave, however, you may be trespassing if you refuse to do so.
Seeking Consent to Enter Property
You should make sure that you get consent before entering someone else's property. This consent must come from the individual, group of individuals, or business entity that is in possession of the property. In many cases this means that you need to get the owner's consent. However, if you want access to leased property, you must get the lessee's consent. Thus, a resident of an apartment complex can invite you into their apartment and you will not be considered a trespasser even if the landlord or owner objects to your presence. Conversely, if the owner gives you permission to access the resident's apartment and the resident declines to do the same, you may be liable for trespass if you enter the resident's property.
In some cases you'll be able to get express consent (verbal or in writing) from the person in possession of the property. In other cases you may believe you have the person's implied consent for your ability to enter her property. This type of situation occurs when:
If you rely on implied consent, you may find it difficult to defend yourself if you are charged with trespassing. You will need to show that a reasonable person in the same situation would have believed that there was implied consent based upon the conduct of the person in possession of the property and the overall circumstance.
Scope of Consent
If you have a right to be present on private or public property you will not be trespassing if your use of the property is consistent with your right to be there. Make sure you understand the scope of the permission you've been given and stay within its boundaries.
For example, you generally have a right to attend, and report on, court hearings, legislative sessions, and some governmental meetings. You can learn more about these rights in our section on Access to Government Information, Electronic Records, Meetings and Public Spaces. However, you have no right to enter a judge's chambers located in the courthouse, or private offices in the same building hosting the legislative sessions and other governmental meetings.
Misrepresenting yourself in order to gain consent
You may want to engage in investigative reporting tactics in order to inform the public about improper business practices or governmental wrongdoing, and thus may feel the need to misrepresent yourself in order to gain the necessary consent. If you do so, you may find yourself facing charges of trespass on the basis that your misrepresentation vitiated the consent given to you.
For example, in Food Lion v. Capital Cities/A.B.C., two ABC journalists falsified their resumes, and became employees of Food Lion grocery stores. 194 F.3d 505 (4th Cir. 1999). The two journalists gained access to areas of the store that were off limits to the general public and used hidden cameras to record unsanitary meat handling practices. The appellate court upheld a jury verdict finding the journalists liable for trespass on the basis that the journalists had breached their duty of loyalty to their employer, Food Lion.
In a second case involving ABC, however, a court did not hold ABC liable for trespass because it concluded that ABC's employees did not actually interfere with the owners possession or use of the property. Desnick v. American Broad. Cos., 44 F.3d 1345 (7th Cir. 1995). In Desnick, two ABC employees posed as patients and requested eye examinations at Desnick's eye clinics. The employees used hidden cameras and recorded the eye examinations which were subsequently used for a news story about the care and advice received at Desnick's eye clinics. Despite the ABC employees' misrepresentation of themselves as patients, the court declined to hold ABC liable for trespass because the eye clinics were open to the public, and the ABC employees did not interfere with Desnick's ownership or possession of his property.
Other issues may also come into play when you misrepresent yourself, such as laws against posing as a public official. Given the complexity of the caselaw, if you feel that you must conceal your identity in order to access property, you should get legal assistance to avoid claims of trespass (as well as other claims like fraud and invasion of privacy). Refer to the section on Finding Legal Help in this guide for more information.
While you can't always eliminate your legal risks when entering the property of others, there are a number of ways you can minimize your risk of liability. Some suggestions include:
If you physically enter a private area, photograph or take video of people engaged in private activities in places where they reasonably expect to be private, or in some other other way intrude into a person's privacy (by, for example, opening the person's mail), you could be liable for a violation of what is called "intrusion upon seclusion." If you collect certain personal data, this can also intrude into a person's private affairs. In the newsgathering context, the actual collection of the data could be seen as intrusion if the method you use meets the four general elements for an intrusion claim.
Generally speaking, however, you will not be liable for intrusion if you photograph or capture video of people in public places, even if they have not consented to being recorded, because individuals cannot have a reasonable expectation of privacy when in public. Nor will you be liable for intrusion if you gather private information from documents that are available to the general public.
If you plan to gather private information or take photographs or video of people engaged in private activities in places where they could reasonably expect to be private, you should:
You should know that it is not necessary that you publish the photographs or information you gathered; an intrusion claim rests solely on the way in which you gathered your information. If you do subsequently publish the private information you gathered, however, you could also face liability for what is called "publication of private facts." See the section on Risks Associated with Publication in this guide for more information on the risks you may face if you publish private information.
An intrusion on seclusion claim is a special form of invasion of privacy. It applies when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another. In most states, to make out an intrusion on seclusion claim, a plaintiff must generally establish 4 elements:
With respect to the first element of an intrusion claim -- intentional invasion into the private affairs of another -- courts generally require that the intrusion take the form of a "physical trespass." This can be met literally, by physically entering onto private property, or by an electronic or optical intrusion, such as using zoom lenses or highly sensitive microphones to photograph or record a person who has a reasonable expectation of privacy. A court would consider this a "physical trespass" if your use of ultra-powerful or highly sensitive equipment was the only way you were able to obtain your information or recording.
The second element requires that the actions giving rise to a claim must be offensive to a reasonable person. This requires more than mere discomfort or embarrassment. For example, barging in on someone in the bathroom and photographing them using the facilities would be offensive to a reasonable person while taking a picture of them standing at the mirror combing their hair likely would not be offensive.
The third element requires that the intrusion involve a private matter. Generally speaking, if you've intruded into someone's seclusion in a place they expect privacy (e.g., a bathroom or their bedroom) or while they are engaged in an activity that most reasonable people would expect to be private (e.g., intimate contact with another) this element will be met.
The fourth element requires that the intrusion must have resulted in mental anguish or suffering for the person whose privacy was invaded. This suffering can come from surprise, fright, or even anger at having been disturbed. In the case of surreptitious invasions, it can also come from the plaintiff finding out, after the fact, that his or her privacy has been invaded. The degree of anguish or suffering the plaintiff experiences will determine the amount of damages he or she is entitled to if the other elements of an intrusion claim are established.
Keep in mind that consent is typically one of your strongest defenses to an intrusion claim. Consent can often be gained expressly, by someone specifically telling you that you can photograph or collect private information about them (which you should get in writing), but can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and photography equipment. If consent is required, however, you must obtain it from someone who is legally able to give it. Permission from a child or mentally handicapped person is unlikely to be valid; in those situations, you should seek consent from the appropriate parent or guardian.
Each state has its own definition of what constitutes intrusion upon seclusion. You should consult the state sections listed below to determine whether your specific state recognizes intrusion on seclusion and, if so, how it defines what is necessary for a claim. (Note that the guide does not include every state at this time.)
Intrusion law in California does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. California courts have adopted the elements of a claim for intrusion outlined in the Restatement (Second) of Torts. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463 (1986).
California courts have recognized a more expansive definition of intrusion, however, that includes situations involving the use of deception to obtain private information. For example, a court allowed an intrusion claim where the defendant misrepresented his relationship with the plaintiff to obtain private information from her foster mother. See Taus v. Loftus, 40 Cal.4th 683, 725 (2007) (available at the Supreme Court's website after entering the citation information).
California courts also recognize some additional limitations on your liability for intrusion. With respect to the first element of a claim -- intentional invasion into the private affairs of another -- California courts have upheld your right to photograph a public figure even if he or she is on private property so long as the subject is in full public view. Being in full public view eliminates any reasonable expectation of privacy that the subject may have.
In California, the plaintiff must prove that you intended to intrude on the seclusion of another. Marich v. MGM/UA Telecommunications, Inc., 113 Cal. App. 4th 415 (2003)(holding that you must desire, or intent, to cause the consequences of your actions or believe that the consequences are substantially likely to follow). In other words, if you were merely scanning the horizon with your binoculars and inadvertently saw into someone's bedroom, this mistaken intrusion into an area of seclusion of another will not likely give rise to liability.
Other Potential Bases for Liability
If you are photographing or recording someone in California, you should be aware that California also has an Anti-Paparazzi Statute: California Civil Code, §1708.8. The statute prohibits you from trespassing onto another person's land or property with the express intention of procuring any kind of visual image, including but not limited to photographs, visual images, sound recordings or other images of a person engaging in a personal or familial activity.
Under this statute, you can also be found liable for invasion of privacy for photographing or video taping a person in a manner that a reasonable person would find offensive regardless of whether you have physically approached the subject. This would include using high power lenses or ultra-sensitive microphones to gain access to a place where a person has a reasonable expectation of privacy. These would all be cases where, without actual physical trespass, you would not have been able to capture the image of the person without the use of special equipment.
You should be especially cautious about entering the private property of another when covering the actions of police or government officials (these are often called "ride-alongs"). Even with police or other government permission, you will likely still be liable for intrusion if you enter a private home without the consent of the homeowner herself. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1487-88 (1986).
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In California, you should also consider:
Intrusion law in the District of Columbia does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information. District of Columbia courts have only focused on the first three elements of the claim as there have yet to be any cases that deal specifically with anguish or suffering.
If you gather news or information in Washington, DC, you should be aware that gathering data from FBI files may be held to a different standard than gathering information from other publicly available sources. For example, a court held that gathering information from FBI files could constitute a claim for intrusion because information contained in FBI files, although sometimes available through public records, are not as easily accessible. Alexander v. FBI, 971 F. Supp. 603 (D.D.C. 1997). The court also reasoned that this type of information is highly personal and private and its disclosure could be considered offensive to a person of ordinary sensibilities.
Intrusion law in Florida does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Wolfson v. Lewis, 924 F. Supp. 1413, 1419 (E.D. Pa. 1996) (interpreting Florida law), which highlights Florida's recognition of intrusion and shows its adoption of the elements of a claim described in the Restatement (Second) of Torts. As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Other Potential Bases for Liability
Florida also has a stalking statute (Florida Statute 784.048) that prohibits engaging in a pattern of conduct directed at a specific person that causes substantial emotional distress to that person. If you violate this statute, you could be held liable for stalking and your actions could be viewed as an intrusion.
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Florida, you should also consider:
Intrusion law in Georgia does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Cabaniss v. Hipsley, 151 S.E.2d 496, 499-500 (Ga. App. 1966). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
With respect to the first element of a claim -- invasion into the private affairs of another -- Georgia requires that the intrusive conduct must be intentional. See Anderson v. City of Columbus, 374 F. Supp. 2d 1240, 1246 (M.D. Ga. 2005). However, a Georgia court has also held that physical intrusion is not always required, finding liability where the defendant repeatedly followed the plaintiff. See Anderson v. Mergenhagen, 642 S.E.2d 105, 110 (Ga. App. 2007).
Other Potential Bases for Liability
If you are photographing or recording someone in Georgia, you should be aware that Georgia has a statute that makes it unlawful for any person, through the use of any device, without the consent of all persons being observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view. This statute just highlights that in addition to your physical trespass, the use of any device to intrude, whether it be a camera, microphone or video, can impose liability in Georgia. See O.C.G.A Section 16-11-62(2).
The Georgia statute specifically states that liability for intrusion does not require that photographs be developed or shown to others to complete the invasion of privacy. The statute is only concerned with the intrusive activity engaged in to obtain the photograph. See O.C.G.A Section 16-11-62(2).
Intrusion law in Illinois does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Burns v. Masterbrand Cabinets, Inc., 874 N.E.2d 72, 75-77 (Ill. Ct. App. 2007). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Illinois courts do, however, differ slightly in describing the second element of a claim, requiring that the intrusion must be "offensive or objectionable." It does not appear that this change materially affects the outcome of cases.
The Seventh Circuit Court of Appeals, which covers federal courts in Illinois, has hinted that there may be a First Amendment privilege to intrude with respect to matters of public concern. See Desnick v. American Broadcasting Co., 44 F.3d 1345 (7th Cir. 1995). Using this logic, a federal district court judge stated that if the media could show that their intrusive activities were necessary to expose improper prison conditions, a highly newsworthy and publicly concerned topic, that could be a possible defense to intrusion. See Huskey v. NBC, 632 F.Supp. 1282, 1291 (N.D. Ill. 1986).
Intrusion law in Indiana does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Massachusetts courts have not formerly adopted a common law claim for intrusion. Instead, Massachusetts has a statute that defines intrusion as an "unreasonable, substantial or serious interference with privacy." M.G.L. c. 214, Section 1B. Although the courts in Massachusetts formerly use the Massachusetts statute as their guide for intrusion claims, they do look to the general rule outlined in the Restatement to evaluate an intrusion claim. See Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567 N.E.2d 912, 915 (1991). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
In addition to gaining explicit consent from the person you wish to photograph or record, Massachusetts courts have extended this consent to other individuals under certain circumstances. For example, in Bevis v. United States, 971 F.2d 744 (unreported), a hospital employee escorted a photographer though the facility and gave permission for the photographer to take pictures. Although patients did not specifically give consent to the photographer, the court held that a claim for intrusion could not succeed because the consent from the hospital extended to its patients.
Intrusion law in Michigan does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See DeMay v. Roberts, 9 N.W. 146 (Mich. 1881) (recognizing the intrusion tort); Duran v. Detroit News, 504 N.W.2d 715 (Mich. Ct. App. 1993) (applying intrusion to the media and laying out the elements). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
The only major difference that distinguishes Michigan's application of intrusion from the general elements applied by other states is that Michigan requires the method of intrusion to be "objectionable", rather than offensive. It is unclear if this makes a practical difference, but it is possible that a court could find conduct to be objectionable, but not necessarily offensive.In addition, Michigan has clarified that a defendant will not be liable for intrusion if he or she has a legitimate interest in the subject matter. See Saldana v. Kelsey-Hayes, 443 N.W.2d 382, 384 (Mich. Ct. App. 1989). This added defense deals with the second element of the claim that requires that the matter be private. Although there are no reported cases as of yet specifically geared to the media, this defense shows that a plaintiff's privacy is not absolute and can be subject to the legitimate interest of others.
Intrusion law in New Jersey does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 17 (N.J. 1992). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Corporations, partnerships, and unincorporated associations have no right of privacy under New Jersey law and therefore cannot assert a claim for intrusion upon seclusion.
Other Potential Bases for Liability
If you are photographing or recording someone in New Jersey, you should be aware that New Jersey imposes criminal (N.J.S.A 2C:14-9) and civil (N.J.S.A. 2A:58D-1) liability for photographing or filming or disclosing any filming or photography of "another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed."
New York courts do not recognize intrusion upon seclusion claims. See Howell v. New York Post Co., 612 N.E.2d 699, 703 (N.Y. 1993).
Courts in New York do, however, recognize causes of action for trespass and other illegal acts committed during the course of newsgathering. See the section on Entering the Property of Others for more information about trespass and the other risks you may encounter.
Intrusion law in North Carolina does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Miller v. Brooks, 472 S.E.2d 350, 353-55 (N.C. Ct. App. 1996). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
Always attempt to get the consent of any parties you are filming or whose privacy you might otherwise be intruding into. Consent from the subject will likely give you a strong defense against an intrusion claim. See Miller v. Brooks, 472 S.E.2d 350, 354-55 (N.C. Ct. App. 1996).
Intrusion law in Ohio does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Sustin v. Fee, 431 N.E.2d 992, 993-94 (Ohio 1982). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
In addition, Ohio has gone further with the first element in stating that the intrusive conduct must be intentional. Negligent intrusion is not sufficient. See Filotei v. Booth Broad. Co., 1981 Ohio App. LEXIS 10461 at *6. At least one Ohio court has also noted that intrusion includes the making of persistent and unwanted telephone calls. See Clark v. Clark, 2005-Ohio-5252 (Ohio Ct. App. 2005).
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Ohio, you should also consider:
Intrusion law in Pennsylvania does not differ signicantly from the law described in the General Elements of an Intrusion Claim section of this guide. See Harris v. Easton Pub. Co., 483 A.2d 1377 (Pa. Super. Ct. 1984). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
However, persistent "hounding, harassment and unreasonable surveillance" may constitute intrusion in certain circumstances, even if conducted in a public or semi-public place. See Wolfson v. Lewis, 924 F.Supp. 1413 (E.D. Pa. 1996).
Other Potential Bases for Liability
You should also be aware that Pennsylvania also has criminal anti-harassment law, see 18 PA C.S.A. 2709, and an anti-stalking law, see 18 PA C.S.A. 2709.1. Under these laws, following a person under circumstances demonstrating an intent to cause substantial emotional distress could result in criminal liability.
Practical Tips for Avoiding Liability When Gathering Private Information
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Pennsylvania, you should also consider:
Virginia does not recognize intrusion claims. See WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (2002). However, there are several related causes of action that exist in Virginia.
First, it is a crime in Virginia to knowingly and intentionally videotape, photograph, or film any nonconsenting person if that person is nude or in state of undress so as to expose the genitals, pubic area, buttocks or female breast in a location where the person would have a reasonable expectation of privacy. See Va. Code. Ann. 18.2-386.1
Second, Virginia has an anti-stalking statute, which makes it a crime to "on more than one occasion engage in conduct directed at another person with the intent to place, or when [you know] or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person's family or household member." Va. Code. Ann. 18.2-60.3.
Intrusion law in Washington does not differ signicantly from the law described in the General Elements of an Intrusion Claim section of this guide. See Doe v. Gonzaga University, 143 Wn.2d 687, 705-06 (2001).
As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.
"Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts. Generally speaking, the limitations period for intrusion claims begins to run on the date when the intrusion occurred.
Each state sets it own time limits for bringing a lawsuit and a court will typically apply the appropriate statute of limitations of the state in which the suit is filed. A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech-challenging lawsuits.
Because each state has its own statute of limitations for intrusion claims, which vary between one and four years, you should refer to the state sections listed below to find out what the specific statute of limitations is in your state. (Note that the guide does not include every state at this time.)
The statute of limitations for intrusion claims in California is 2 years. Cal. Civ. Proc. Code Section 335.1.
California courts at one time applied a one-year limitations period for injury to persons, but in 2002, California updated its statute of limitations and increased the time period allowed for injury to persons to two years. Therefore, a 2 year statute of limitations will apply for invasion of privacy lawsuits, such as intrusion.
The statute of limitations for intrusion claims in Washington D.C is 1 year. See Doe v. Southeastern Univ., 732 F. Supp. 7 (D.D.C. 1990).
The statute of limitations for intrusion cases in Florida is 4 years. See Fla. Stat. 95.11 (3)(g) & 95.11(3)(o).
The statute of limitations for intrusion claims in Georgia is 2 years. See Ga. Code Ann. § 9-3-33.
The statute of limitations for intrusion claims in Illinois is 1 year. See 735 ILCS 5/13-201. Intrusion claims are governed by the same limitation period that is used for libel, slander and defamation actions.
The statute of limitations for intrusion claims in Indiana is 2 years. Although there is no specific statute on point, Indiana uses the same limitations period for intrusion as it does for actions for injuries to persons. See Ind. Code 34-11-2-4.
The statute of limitations for intrusion cases in Massachusetts is 3 years. Because there is no specific statute on point, Massachusetts uses the same limitations period for intrusion as it does for libel, slander and defamation suits, which is 3 years. See M.G.L. c. 260 Sec. 2A.
The statute of limitations for intrusion cases in Michigan is most likely 3 years. There is no specific statute governing the limitation period for a right to privacy suit. It is likely that courts would not apply the 1 year statute of limitations for libel. See Mich. Comp. Laws 600.5805(9). Rather, a court would likely apply the general 3 year statute of limitations for injury to person or property when reviewing an intrusion claim. See Mich. Comp. Laws 600.5805(10).
The statute of limitations for intrusion claims in New Jersey is 2 years. See N.J. Stat. Ann. 2A:14-2.
The state of New York does not recognize intrusion upon seclusion claims, so no statute of limitations is relevant. See Howell v. New York Post Co., 612 N.E.2d 699, 703 (N.Y. 1993).
The statute of limitations for intrusion claims in North Carolina is either 1 or 3 years. Because there is no specific statute on point, North Carolina courts would either use the same limitations period for intrusion as they do for libel, slander and defamation suits (1 year), see N.C. Gen. Stat. 1-54(3), or the general (3 year) catch-all statute of limitations for claims that are not specified elsewhere, see N.C. Gen. Stat. 1-52(5).
The statute of limitations for intrusion claims in Ohio is 4 years. See Ohio Rev. Code 2305.09 (D).
The statute of limitations for intrusion claims in Pennsylvania is 1 year. See 42 PA C.S.A 5523(1).
The statute of limitations for intrusion claims in Texas is 2 years. See V.T.C.A., Civil Practice & Remedies Code 16.003.
Courts in Virginia do not recognize intrusion claims, see WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (2002), therefore the statute of limitations is inapplicable.
It is not clear what the statute of limitations is for intrusion in Washington because courts in Washington only recently recognized intrusion claims. For defamation and false light invasion of privacy cases, the statute of limitations is 2 years. See RCW 4.16.100(1). At least one source indicates that courts will likely apply this 2 year statute of limitations to intrusion claims as well. See Media Law Resource Center, 50-State Survey 2007-2008: Media Privacy and Related Law (2008). If this is not the case, the statute of limitations is likely the 3 year period applied to other torts. See RCW 4.16.080.
While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion or other newsgathering related lawsuit. Some suggestions include:
Using a recording device, such as a microphone, video recorder, or camera, is often a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet.
Where you do your recording, and what you record, will largely dictate what legal limitations apply to your recording activities. It may also be the case (in fact, it is quite likely) that more than one set of laws or limitations might apply to your use of recording equipment. Before concluding that your activities are in the clear, you should read all of the sections listed below that might apply, as well as the section on Gathering Private Information elsewhere in this guide.
If you plan to record the conversations of others, whether they occur in person or over the telephone, you should review the section on Recording Phone Calls and Conversations. This section discusses federal and state wiretapping statutes that make it a crime to record telephone calls and private conversations in many circumstances. Keep in mind that conduct that could lead to criminal and civil liability under federal and state wiretapping statutes could also lead to possible liability for intrusion. Please refer to the state-specific sections of this guide to get a more in-depth overview of the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia.
If you plan to use a recording device at a public meeting or court hearing, you should review the section on Recording Public Meetings and Court Hearings, which looks at the laws affecting your ability to make sound and video recordings and to take photographs in these quasi-public settings. Because laws vary greatly state-by-state, be sure to consult the state-specific sections of this guide for detailed information on the laws regarding use of recording devices at court hearings and public meetings. For more information on your general right to be present at court hearings and public meetings, please see the Access to Government Information section of this guide.
If you plan to take photographs, video, or audio of people engaged in private activities in places where they reasonably expect to be private, you should also read the section on Gathering Private Information in this guide. Various privacy laws could subject you to liability in this context, so you should proceed with caution if you will be recording private activities.
Once you've reviewed the other sections and are prepared to proceed, you should carefully review the section on Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings. This section provides some practical guidelines for using recording devices, which should help you steer clear of legal trouble.
Browse any of the sections below to get started:
If you plan to record telephone calls or in-person conversations (including by recording video that captures sound), you should be aware that there are federal and state wiretapping laws that may limit your ability to do so. These laws not only expose you to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damages against you.
From a legal standpoint, the most important question in the recording context is whether you must get consent from one or all of the parties to a phone call or conversation before recording it. Federal law and many state wiretapping statutes permit recording if one party (including you) to the phone call or conversation consents. Other states require that all parties to the communication consent.
Unfortunately, it is not always easy to tell which law applies to a communication, especially a phone call. For example, if you and the person you are recording are in different states, then it is difficult to say in advance whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws will control the situation. Therefore, if you record a phone call with participants in more than one state, it is best to play it safe and get the consent of all parties. However, when you and the person you are recording are both located in the same state, then you can rely with greater certainty on the law of that state. In some states, this will mean that you can record with the consent of one party to the communication. In others, you will still need to get everyone's consent. For details on the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section. In any event, it never hurts to play it safe and get the consent of all parties to a phone call or conversation that you intend to record.
Who must give permission to record a telephone or in-person conversation?
Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one-party consent" law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a "one-party consent" law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.
In addition to federal law, thirty-eight states and the District of Columbia have adopted "one-party consent" laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents. See the State Law: Recording section of this legal guide for information on state wiretapping laws.
When must you get permission from everyone involved before recording?
Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Although they are referred to as "two-party consent" laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people. See the State Law: Recording section of this legal guide for information on state wiretapping laws.
Can you record a phone call or conversation when you do not have consent from one of the parties?
Regardless of whether state or federal law governs the situation, it is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party, and could not naturally overhear. In addition, federal and many state laws do not permit you to surreptitiously place a bug or recording device on a person or telephone, in a home, office or restaurant to secretly record a conversation between two people who have not consented.
Federal law and most state statutes also make disclosing the contents of an illegally intercepted telephone call illegal. See the section on Risks Associated with Publication in this guide for more information.
Public Meetings
Generally speaking, when you attend a public meeting of a government body that is required to be open to the public by law, you are free to record that meeting through note-taking, sound and video recording devices, and photography, so long as the method of recording used is reasonable and not disruptive. Your ability to do so, however, is based largely on state open meetings laws, and the details of these laws vary significantly. At least one court has held that there is no federal constitutional right to make a video recording of an open meeting, at least not when other methods are available for compiling a record of the proceeding, such as written and stenographic notes or audiotaping. Whiteland Woods, LLP v. Township of W. Whiteland, 193 F.3d 177 (3rd Cir. 1999). Government bodies may therefore place reasonable restrictions on the use recording devices, including a ban on certain devices, in order to preserve the orderly conduct of its meetings.
For information on your right of access to the meetings of government bodies, please consult the Access to Government Information section of the guide and the Open Government Guide prepared by the Reporters Committee for Freedom of the Press.
Even when no state open meetings law affirmatively gives you the right to record, many state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. If you are attending a meeting that is open to the public, it is likely that the people running a meeting or giving a speech should reasonably assume that they might be recorded. However, you should always take reasonable steps to make clear that you are recording. Concealing your camera or recording equipment is not a good idea.
For state-specific information about using recording equipment in public meetings, see the State Law: Recording section.
Court Hearings
The law regarding the use of audio and video recording devices in court hearings varies a great deal based on the state. In Chandler v. Florida, 449 U.S. 560 (1981), the U.S. Supreme Court held that the federal Constitution does not prohibit states from allowing cameras in the courtroom and that states may adopt their own rules permitting such recording equipment. Note that this ruling does not require states to allow recording in the courtroom, it only says that states may choose to do so. Since this ruling, all fifty states have adopted rules on the topic, but the rules vary widely. In some states, cameras and recording equipment are permitted in trial and appellate court proceedings, while in others recording is only allowed in appellate court proceedings. Most states give the court discretion to impose reasonable restrictions on the use of cameras and recording equipment in order to maintain the integrity of its proceedings and to otherwise serve the interests of justice.
For state-specific information about recording in courtrooms, see the State Law: Recording section.
The federal appellate courts may adopt their own rules regarding cameras and recording equipment in the courtroom. At the time of writing, only the Second Circuit and the Ninth Circuit Courts of Appeals allow recording equipment.
For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.
Using a recording device, such as a microphone, video recorder, or camera, is a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet. A number of laws affect your ability to use a recording device in these contexts. Here are some practical tips to help you avoid legal trouble when recording conversations, phone calls, meetings, and hearings.
Practical Tips for Recording Phone Calls and Conversations
Practical Tips for Recording Public Meetings and Court Hearings
Each state has its own wiretapping statute and its own rule on how many parties need to consent to the recording of a phone call or conversation in order to make it lawful. State law also varies on whether or not (and under what circumstances) you are permitted to use recording devices in public meetings and court hearings. Choose your state from the list below for state-specific information on recording laws.
Note: This page covers information specific to California. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.
California's wiretapping law is a "two-party consent" law. California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See Cal. Penal Code § 632. The statute applies to "confidential communications" -- i.e., conversations in which the participants have an expectation of privacy. A California court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (1989). If you are operating in California, you should always get the consent of all parties before recording any conversation that common sense tells you might be "private" or "confidential." In addition to subjecting you to criminal prosecution, violating the California wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Cal. Penal Code § 637.2.
Conversations that occur in a public space or in an area where the parties do not have any expectation of privacy are not covered by the wiretapping statute. Therefore, you generally are free to record a conversation happening between people in a public place, such as a street, a park, or on the steps of a courthouse, even without consent. For example, a California court has upheld a television network's right to use a hidden camera to videotape a conversation that took place during a business lunch on an outdoor patio of a public restaurant. See Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (1999). The court held that because the information being recorded was not secret or confidential, the statute was not violated, and the network was free to videotape.
Consult The Reporters Committee for Freedom of the Press's Can We Tape?: California for more information on California wiretapping law.
Court Hearings
In a California state courtroom, you may be able to use a recording device if specific requirements are met. Anyone may use an inconspicuous personal recording device for note-taking purposes with the advance permission of the judge. For photographing, recording (other than as above), or broadcasting a court proceeding, you must file official media coverage request forms. These forms must be filed with the court at least five days before the event to be covered. The court has broad discretion to grant or deny such requests based on a number of factors. See Rule 1.150 of the California Rules of Court for details.
Federal courts in California are part of the Ninth Circuit. In Ninth Circuit appellate proceedings, cameras and recording devices are permitted at the discretion of the presiding panel of judges. To get permission, you need to file an Application for Permission to Photograph, Record, or Broadcast from the Courtroom three days in advance, although the panel can waive the advance notice requirement. Recording devices and cameras generally are prohibited in federal district courts in California.
For information on your right of access to court proceedings, please consult the