Invasion of Personal Privacy

Today virtually everyone is carrying around cell phone/computers in their pockets, and has the ability to take pictures or videos at any time. This allows them to surreptitiously record images in locker rooms, bathrooms, bedrooms or other private settings. Further, stories abound in the media about people putting sex videos of celebrities or their former lovers online. If this happens to someone, does he or she have recourse?

In Oregon the answer is yes, provided that certain circumstances are met. This article discusses the tort of invasion of personal privacy in Oregon, which is a right set forth expressly by statute. There may be other possibilities for making a claim in other circumstances, which are not discussed here. One circumstance in which a person has the right to file a claim for invasion of personal privacy is if someone (the defendant) knowingly makes a visual recording (picture, video, etc.) of the claimant, without his or her consent, while the claimant is in a “state of nudity”, in a place where they have a reasonable expectation of privacy. It is worth noting that in the law, “knowingly” is not a very high standard. It does not mean “intentionally” which is a completely different standard. If someone knows that a video camera is operating, or probably operating for example, that would clearly meet the definition of “knowingly” even if there was no intent to make a video of a claimant. There are also other circumstances covered by the law. The other three circumstances are:

  • The defendant, for the purpose of sexual gratification, was in a location to observe the claimant in a state of nudity, where the claimant had a reasonable expectation of privacy (for example, the situations of viewing people in a bathroom through a peephole);
  • The defendant, for the purpose of sexual gratification, made a visual recording of an intimate area of the claimant without his or her consent, or viewed an intimate area of the claimant without consent;
  • The defendant disseminated a visual recording of the plaintiff in a state of nudity, and the defendant knew at the time that the claimant was in circumstances where he or she had a reasonable expectation of privacy. This probably covers the publishing of the bedroom sex video situation
    The law is set forth in the Oregon statutes at ORS 30.865.

There are some key definitions in the statute. “Intimate area” generally means undergarments that are intended to be covered and protected from being seen, genitals or the pubic area if covered by clothing and intended to be protected from being seen, or female breasts below the point immediately above the areola.

A “state of nudity” means the genitals, pubic area or female breasts below the point immediately above the areola if the area is uncovered or “less than opaquely covered”.

A successful claimant is entitled to compensatory damages and attorney fees. Because the law does have an attorney fee provision, it is a powerful tool that should receive a good amount of use. The statute of limitations is two years. There is also a criminal statute in Oregon that is applicable to some of the situations covered by the civil statute discussed here.

This article is informational only, and summarizes the key provisions of this law, but does not fully cover the statute. Anyone seeking legal advice should not rely on this article and should consult with a qualified attorney.

By |2017-05-14T00:12:10+00:00November 21st, 2016|Business Law, General|Comments Off on Invasion of Personal Privacy

About the Author:

Brad Schrock is an attorney in Beaverton, OR, specializing in business law, wills & estate planning, and personal injury claims. Practicing law since 1987, Brad is a member of the Oregon and Washington State Bars. His experience spans domestic and international transactions and he even speaks conversational Japanese.