A&A: Videotaping public reservoirs

Q: A member of a watershed working group videotaped a tour of the public utilities commission’s reservoir with the knowledge and permission of the public utility commission employee who can be seen in the video.  I am being told indirectly that they want it taken down NOW, and suspect I’m about to be ordered to do so.

A: Although I cannot advise you with respect to your particular situation, I can give you some general information about audio and videotaping, and the use of a tape on a web site.

As a preliminary matter, your email indicates that the videotaping was not performed by you, but rather by a member of a watershed working group.  California Penal Code Section 632 (reproduced below) makes it unlawful to record a “confidential communication” that was obtained without the consent of all parties to the conversation.

However, section 632 prohibits only the act of taping, not the use or disclosure of a recording made in violation of that section.  For future reference, you should be aware that the California Supreme Court has held that a communication is confidential under Penal Code section 632 if a party to that conversation had an objectively reasonable expectation that the conversation was not being overheard or recorded.  Flanagan v. Flanagan, 27 Cal. 4th 766 (2002).  And section 632(c) defines the term “confidential communication” as a “communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . or in any other circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

Although section 632 addresses only the recording and not the use of a videotape, issues sometimes arise with respect to privacy.  In California, a person can be held liable for the publication of private facts when private information about a person is published and the information has no newsworthy value.  For liability to exist, there must be (1) public disclosure; (2) of a private fact; (3) that identifies the plaintiff; (4) the disclosure of which would be offensive to a reasonable person; and (5) the private fact is not newsworthy.  In general, a fact is less likely to be “private” if it occurs out in the open and can be observed by anyone who happens to be nearby (v. something that occurs in a private place, like a private home or a hospital room).  And if it can be established by the video itself or by other evidence that the plaintiff expressly or implicitly consented to having the video taken, that would be a defense to a claim for invasion of privacy.

Finally, it is not clear from your email who is asking you to take down the video.  If the request is coming from the member of the watershed working group that created the videotape — who presumably owns the copyright to that videotape — you may have copyright issues.  A full analysis of these issues and their applicability to your situation is beyond the scope of what we can offer as part of this hotline.