iphone videoCareful about protecting the safety of his customers, A.R. Remington, owner of Fishinabarrel Gun Range, installed surveillance cameras to blanket his premises, except the restrooms. Last week while target practicing with his Glock 9mm, Politician Ronald Crump made an off color joke about his likely opponent in the upcoming presidential election using a reference that only grandfathers would have said. Not only were Crump’s comments recorded by Fishinabarrel Gun Range, his opponent’s aide Sly Tapr happened to video the conversation on his phone which he posted on the internet. The recording went viral. Can Fishinabarrel operate surveillance cameras without advising its customers like Crump? Can Sly Tapr legally videotape Ronald Crump?

Yes to both. Generally speaking, Texas law does not prohibit surreptitious audio or video recording, either criminally or civilly, making it unlikely that a recording of a fraternity off-color chant or a surreptitious recording of an interview in a doctor’s office would be illegal or civilly actionable in Texas.

Texas Penal Statutes

Texas law prohibits photographs, videotape or other broadcasts of another in a bathroom or private dressing room. However, a broader prohibition of such imagery without the other’s consent and with the “intent to arouse or gratify the sexual desire of any person” was struck down by the Texas Court of Criminal Appeals. Texas’ Highest Criminal Court , in part, opined: (1) taking photographs in public places is generally constitutionally protected, because photographs are generally protected expression; (2) this First-Amendment-protected conduct doesn’t lose its protection even when the photographer is intending to arouse or gratify sexual desires; and (3) the statute cannot be defended as a permissible privacy protection because narrower statutes banning photographs in certain private places, such as bathrooms or dressing rooms or “inside [a person’s] home” exist and would be constitutional. For the record, eavesdropping into telephone conversations or hacking into computers are different issues, for which there are many criminal statutes. Texas law, for example, prohibits recording telephone conversations unless one party to the conversation is aware of the recording. The federal Wiretap Act generally is directed to criminalizing government and private conversations intended to be used in court or by law enforcement.

But, Can You be Sued?

Maybe. Texas case law generally recognizes the tort of invasion of privacy which includes: (1) intrusion on seclusion, and (2) public disclosure of private facts.

Intrusion on Seclusion

Either A.R. Remington or Sly Tapr must intrude on Ronald Crump’s private place or private matters, for example, videoing in a bedroom, entering a home without permission, or following, spying on and harassing. As the Fishinabarrel surveillance and the Sly videotaping involved a public place and public matters, neither is liable for invasion of privacy.

Public Disclosure of Private Facts

The offended party must establish that publicity of the private information would be highly offensive to a reasonable person, such as sexual relations, family disputes, unpleasant or humiliated illnesses where there is no legitimate public concern. While the viewing public might be offended, Ronald Crump’s statements “off the record” are not the kind of private information that would satisfy any Crump complaint of public disclosure of private facts, either by A.R. Remington’s Fishinabarrel surveillance or Sly Taper’s social media posting.

Tilting the Scales in Your Favor

Employers. If you are an employer, post signs advising the area is protected by video surveillance and include notification of your right to undertake surveillance in your Employer’s Handbook, but not including bathrooms or dressing areas.

Retailers. There is value in advising your customers, generally, that there are surveillance cameras. Not knowing where they are may discourage improper customer conduct.

Nursing Homes. Consider granting written authorization to the nursing home staff for video surveillance of your loved one’s living area if circumstances warrant.

General “Expectation of Privacy”. Although this seems to be a buzz phrase of late, as far as Texas law is concerned, unless it fits into one of the criminal or civil elements detailed above, it’s a nice phrase that probably does not warrant broad application in Texas.

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