Put it on YouTube, go to jail

In recognition of the passing of my friend, everyone’s friend actually, Jon Nixon, I will point out that “Stairway to Heaven” was, in fact, never released as a single.

Last week I discussed hidden videotaping in your home to catch your spouse at something, which we determined to be illegal, so today I thought I’d tell you what happens when you hear that great Southern saying, “Hey, ya’ll, watch this!” When you hear that, you know something stupid is about to happen, which will probably result in personal injury and/or property destruction. The question is, if it is videotaped by you, can you post it on Youtube even if your buddy is still in traction in the hospital?

Generally, the Legislature has yet to invade on the issue of recording things that happen in public. While they do protect what happens in the confines of a private dwelling to some degree, there is no right to privacy in public spaces.

OCGA 16-11-62(2) says: “Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view; provided, however, that it shall not be unlawful: (B) For an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy;”

In the truly public realm, say at the Georgia National Fair, one can videotape to their heart’s content. If you do something stupid there, well you had to know it was going to make it on the Internet. And as far as private property, which you own, you can pretty much record what you want, per that statute. That’s good news for property owners.

But what about if you don’t own the property? Let’s say you are at Aunt Imogene’s house and want to record your crazy cousin, Lou, as he does one of his patented backflips off the high rock into the creek below. Well, if Lou sees you standing there with the camera, and then says “Hey, ya’ll, watch this!” it is with his consent, implied or express, that you can record his stunt.

But we go further. Let’s say that you know that Lou and his girlfriend, Candy, are known to do backflips butt nekid at Aunt Imogene’s. You set up a video camera and hide in the bushes. Sure nuff, Lou and Candy come do their thing and you go undetected.

Can you post that to Youtube? Well, you can, but you might go to jail. That would be the surveillance part that the statute makes illegal. Even though it is Aunt Imogene’s property, not Lou and Candy’s property, you didn’t have permission to video them. You might have authority to be there, to watch it, but not to video it.

Is this different than Peeping Tom? Not much. Peeping Tom generally connotes that the peeper is on the property of the person being peeped upon, however the surveillance statute and peeping tom statute are both available to a sharp prosecutor in this situation.

Can Lou and Candy assert a “right to privacy” claim on Aunt Imogene’s? I’m not sure, but if you have a personal story to tell, please share. 

Kelly Burke, former district attorney and magistrate judge, is in private practice. He focuses on personal injury cases and corporate litigation. These articles are not designed to give legal advice, but to inform the public about how the law affects their daily lives. Contact Kelly at kelly@burkelasseterllc.com to comment on this article or suggest articles about the law that you’d like to see.

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