In 2021, cameras are everywhere! Whether you are an iPhone or Android user, an easily accessible camera is a given. Home surveillance systems have also soared in popularity, including video surveillance and doorbell cameras. Many systems offer user settings that begin the recording function 24 hours a day with movement or some other triggering event. The byproduct can be hours of video or hundreds of photos, sometimes without the express consent of the people in the photo or video.
While these helpful technological advances offer an added level of security and deterrence, they can also create disputes and animosity amongst neighbors.
It is not uncommon for photos and videos to be posted on public forums, including social media. Those publications are sometimes being made for the purpose of identifying a person or vehicle. I am sure we have all seen and/or heard of the following — “Whose kid is this running a stop sign?” Or “This group of kids almost caused an accident on a golf cart!”
While the publisher of the photo or video is not normally acting with any ill-will or malice, disagreements often arise about the publication of minor children. Thus, begging the question, is this legal?
Absent a narrowly tailored law to a very specific set of circumstances, the First Amendment to the Constitution of the United States permits publication of photos and videos captured in public of another in public. The First Amendment protects each individual’s right to freedom of expression.
From the perspective of the person captured in the photo or video, the legality changes when the “reasonable expectation of privacy” changes. For example, we all have a reasonable expectation of privacy in a public restroom, inside your home or hotel room. Thus, being captured in photos or videos in these locations is not protected by the First Amendment and is illegal. On the other hand, driving a car on a public street or entering another’s property (for example to ring the doorbell and run away) does not afford a reasonable expectation of privacy. Being under the age of 18 does not change this analysis.
Now that we have established that photos and videos and their publication may not be illegal itself, trouble can still be found when the photo or video is paired with a caption. The caption can be defamatory, and this too can have legal consequences. For example, a caption that is not true or exaggerates the circumstances of what occurred. So while the posting of the photo or video is not illegal, the caption may bring the entire post into a realm of legal consequence.
In closing, the “new” neighborhood watch presents fresh challenges and serves as a good reminder that what is legal and what is neighborly may not always be the same. In other words, while it may be perfectly legal to post that photo/video of a kid ringing your doorbell and running away, it might not be the most neighborly way to handle the matter. Before posting photos of those “meddlesome kids,” maybe take a moment and reflect on the severity/egregiousness of the action before posting to social media. Once posted on social media, it is hard to take it back, and your actions may have unintended consequences.
Chris Mingledorff and Michael Patterson are attorneys with Mingledorff & Patterson LLC on Daniel Island. For more information, go to mptrial.com.