Video recording children in the neighborhood is this legal?

Recently on our legal forum a user asked the following question, “One of our neighbors continually video records children playing in the neighborhood. I think this is creepy but does it rise to the level of criminal activity?”

The United States Constitution allows for freedom of speech, freedom of expression, and freedom of the press. Although our Founding Fathers could never have imagined that everyone would now have a pocket-sized video recorder in their back pocket, photography in its broadest sense is generally protected as a form of free expression. This does not mean, however, that there are no restrictions.

Public Place and No Expectation of Privacy

When discussing the legality of video recording it’s important to understand the concept of expectation of privacy. In general, laws have upheld that video recording is allowed without consent if it is done in a public setting, includes objects or people who are in plain sight, and the individual recording is in plain sight. The theory is that persons in public have no expectation of privacy.

Recordings may, however, be excluded or restricted in certain areas which are privately owned. For example, a mall, a movie theater, a concert venue or a sports stadium may have posted signs which strictly prohibit video recording on the premises.

Private Places and an Expectation of Privacy

General privacy laws may prevent someone from videotaping you or your child if you are on private property. Specifically, if the child was in your backyard or any other place where an expectation of privacy exists, including bathrooms, locker rooms, bedrooms, dressing rooms, etc.

Expectations for minors

There may also be additional protections for your child, assuming they are a minor. For example, although individuals can generally be videotaped in public, this does not mean that there may not be laws in your state which specifically prohibit the videotaping of children. For example, Georgia and Virginia have recently passed laws limiting the videotaping of a child by someone other than a parent.

Children may also be afforded additional protections from videotaping if the interaction rises to the level of stalking or if the offender’s intentions are questionable. Additional issues may arise if the video recording was publically posted without the consent of the parties pictured, which may be outlawed in certain states. There are also laws protecting any videorecording which would be considered “pornographic.”

Other issues to consider

Another issue to consider is the legality of audio recording. Although you may have limited protections against your child being videotaped in public without your consent, you do have protections against audio recordings.

In fact, all states have laws which allow for audio recording only if one or both parties consent to the recording. Review your state’s laws for more information, but there may be a good chance that your child’s voice cannot be recorded without their consent.

Additionally, states also bar individuals from recording or taking photographs and using the images for commercial purposes without the consent of the parties pictured. If you believe the neighbor is taking the pictures then profiting from them, this could be illegal unless he first obtains a release from you.

Steps to take about the video recording

Just because the video recording may not be illegal does not mean you are powerless and cannot take steps to try to stop the activity.

Sometimes the easiest and best solution is simply to ask the neighbor to stop video recording your child unless he asks for your permission. If he does not comply, it’s time to talk to the police and find out your legal rights.

Finally, if there is any type of physical or emotional threat you can also review the specific laws in your state to determine if the neighbor’s actions rise to the level of stalking or harassment.

Bottom Line:

Although your neighbor’s actions may not be against the law, this does not mean that you do not have rights or that you cannot stop the activity. Talk to your neighbor. Hopefully, he simply loves photography, understands your concerns, and is willing to find another subject.

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