“With new technologies promising endless convenience also comes new vulnerabilities in terms of privacy and security. And no one is immune.” – Clara Shih
With television and film crews and increasingly sophisticated cell phone photographers seemingly everywhere in New York City, the personal right of subway passengers to be free from having their images exploited is an issue that has never been more closely examined. Photographers and videographers wishing to use the subway to capture images of passengers are not necessarily prohibited from doing so by the MTA, but they must also consider other laws.
New York is a “one-party consent” state with regards to recording conversations. That means that at least one person whose part of a conversation that is being recorded must give explicit consent prior to the recording, otherwise such recording is a crime in violation of the wiretapping law N.Y. Penal Law §§ 250.00, 250.05. But notwithstanding acts that violate the criminal law, photography on public property is constitutionally protected by the First Amendment.
The New York legislature enacted the country’s first statutory right to privacy laws, now codified as sections 50 and 51 of the Civil Rights Law in 2000. Section 50 prohibits the use of a living person’s name, portrait or picture for “advertising” or “trade” purposes without prior written consent. Section 50 provides criminal penalties and section 51 provides a private right of action for damages and injunctive relief. Effectively, New York’s statutory privacy laws protect a person’s “right to publicity.”
Three other privacy rights have been recognized in other jurisdictions: unreasonable publicity given to another’s private life; unreasonable intrusion upon seclusion; and publicity that unreasonably places another in a false light. However, these other three privacy interests have been consistently rejected by New York courts. Therefore, a person wishing to file a claim for an invasion of privacy must make sure that his claim meets the elements for the cause of action under Civil Rights Law §51.
An individual’s cognizable injury to his right of privacy materializes if the individual is in a private “place.” A reasonable expectation of privacy is a two-part analysis. The first part is subjective, meaning did the actor manifest an intention that his acts or his person be confidential and private. The second part is more objective, and the inquiry asks if the average person would conclude that the actor should have reasonably believed he was entitled to privacy in the given circumstance. In a person’s home, he has a reasonable expectation of privacy, which means that a person is absolutely entitled to be secure from having his image exploited there.
New York City subways, however, are public places, and therefore, one does not have a reasonable expectation of privacy as a matter of fact and law. Moreover, the Supreme Court has stated that one’s exposure of the self to others is unavoidable and is “a concomitant of life in a civilized community.” That does not mean, though, that a person has no legal options if his picture is taken non-consensually, but it does mean that a court will not intervene if the picture was taken on the subway and was a matter of public interest. That is because courts are very mindful not to abridge First Amendment press and free speech protections when interpreting and applying the statutes. Consequently, a person who is fiercely protective of his image might not want to take the New York City subways. That is because as long as the photographer is able to argue his reason for taking the picture is a matter of public interest, he will not be found in violation of the statue. Ride carefully.