Neighbors Video Recording Neighbors
A disturbingly high number of posts involve neighbors video recording the poster or the poster's homes. This "legal guide" offers general advice for these tricky situations. It does not create an attorney-client relationship or constitute formal legal advice.
Fact Specific Cases Are Difficult To AdviseThese cases are always "fact specific" making them very difficult or impossible to advise on this forum. The attorney needs to know EXACTLY 1) where the camera is located, 2) what the camera "sees", 3) who has seen the recordings, 4) what is on the recordings, 5) whether or not the camera captures audio. This "legal guide" is not equivalent to talking with an attorney who has reviewed these facts and circumstances.
General Rule-No Reasonable Expectation of Privacy Exists in Exterior AreasThe general rule is people only have a right to privacy in areas where they have a "REASONABLE EXPECTATION OF PRIVACY." There is no legal expectation of privacy in the exterior of your house, and any areas visible from the public space where your neighbor has the right to be without the aid of telescopic equipment. Some examples of things that are perfectly legal to record are the outside of your house, including areas of your driveway and yard that are visible to any passerby. Even the inside of your living room, is potentially permissible if for example, if you have a large window and anyone passing by can see right in.
Areas where privacy rights might PRECLUDE recording could include your bathroom, or your bedroom. I had a case where the neighbor's camera was pointed directly at the bedroom of an underage girl. This is not just a potential invasion of her privacy, it is potentially a crime in many places (see below).
Potential Civil Causes of ActionWith the above stated general rule in mind, there are laws, and constitutional rights, regarding privacy.
The California Constitution contains a guarantee of privacy. For this right to be violated, video surveillance must fulfill three criteria:
1) It constitutes an intrusion
2) It intrudes in a location or context where there is a reasonable expectation of privacy
3) It outweighs other interests by the gravity of the alleged violation
So potential legal issues do arise when neighbors record neighbors. Civil causes of action such as, invasion of privacy, false light, defamation, copyright and many other areas of law may come in to play. Often these issues arise from what the neighbor does with the video, not from the act of recording.
Invasion of PrivacyInvasion of privacy is the most common causes of action in these cases.
California Civil Code 1708.8 reads:
(b) A person is liable for constructive invasion of privacy when the person 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 private, personal, or familial activity, through the use of any 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 device was used.
Potential CrimeAdditionally, there are situations where the neighbor may be violating the criminal penal code. California Penal Code 647 (j)(1) reads:
Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, or camcorder, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments.
Camera Is On Your PropertyWhat if the recording device was placed on MY property? If their cameras are located on your property in plain view criminal penalties may be imposed. Most "eavesdropping" laws (California Penal Code sections 631, 632) expressly prohibit the unauthorized installation or use of cameras in private places. Also read PC 647(j)(2-3).
What Should I Do?-Build Your CaseThe very first step is to build your case. You do this by documenting the existence of the camera. Take photos and/or videos showing where the camera is and how it is pointed at your residence. Then send a demand letter (aka cease and desist letter). I cannot stress how important this step is. It provides "notice" to the other party. More importantly, it often becomes critical evidence if you go to court seeking a restraining order or money damages. For that reason, it is best to have an attorney do this (but you could write it yourself). See: https://www.avvo.com/legal-guides/ugc/demand-letters
OptionsOne option is to live with it. Another is to seek a court order prohibiting them from focusing the camera on your property. That is not a very practical solution but it sometimes works. Further, because this MAYBE a violation of CA Penal Code 647, is to call the police and file a report. That report will be forwarded to the District Attorney who will determine if a formal charges will be filed. If the DA does not prosecute then you know you do not have a criminal remedy.