In the first part of this series, we examined whether or not it is legal in Georgia to collect audio recordings. While the rules surrounding making audio recordings may sound legally complicated, video is an entirely different animal.
In Georgia, it is illegal to record a person without his or her consent in a place where that person may have a reasonable expectation of privacy. In family law cases, this typically occurs within the parties’ home. There are many devices on the market that record activity inside the home, such as Ring security cameras, “nanny cams,” devices designed to provide video of your pets during the day, and similar products. When it comes to video recordings, there are a handful of basic rules you should follow:
- Location. Is the recording conducted in a place where the person being recorded has a “reasonable expectation of privacy?” This is a complicated question that is examined in innumerous volumes of court opinions. Generally speaking, a person has a reasonable expectation of privacy inside his or her home and on the “curtilage” of the home, such as the driveway, side yard, and up to the public property line. If a video recording occurs at a public park, school event, or soccer game, it is likely there is not a reasonable expectation of privacy. If there is no reasonable expectation of privacy, whether or not the person knows he or she is being recorded is irrelevant. For example, if you have been to a concert and recorded the artist on stage, there is no reasonable expectation the artist has privacy that would prohibit you from recording without consent. If the recording occurs in your bathroom, then you would obviously feel like you had a right to privacy.
- Consent. Georgia law provides that when a recording is made in a private place, all parties observed in the video must provide consent for the recording to be legal. Unlike audio recordings, if one person is conducting a video recording of the other party without his or her knowledge or consent, it is improper and probably illegal.
Let’s examine some common issues that arise in the context of divorce cases.
Example 1: Husband and Wife are fighting in the kitchen of their home. Wife becomes aggressive with Husband and pulls a frying pan out of the kitchen drawer. Wife begins to chase Husband with the pan. Husband turns on his cell phone camera, holds it up, and has it in plain view as Wife chases him through the house. It is clear to Wife that Husband is video recording her. This is a legal recording and can be used as evidence.
Example 2: Husband and Wife are in the middle of a custody dispute. Wife has had an issue with missing jewelry while the parties have had a nanny in the home, so Wife installs a “nanny cam” on a shelf in the child’s room to watch the nanny. Husband is putting the child to bed, and Wife activates the nanny cam. Wife overhears Husband telling the child that he will “keep the child safe from Mommy,” that he is “the one who loves the child” and that “Mommy lies.” Wife wants to use the video as evidence that Husband should not have custody of the child.
This is a trick question and can go either way. This illustrates how complicated the law is on permissible surveillance vs impermissible surveillance. One lawyer might credibly argue that this video is improperly obtained and cannot be used as evidence. The video was made without Husband’s knowledge and conducted a video recording of Husband in a place where he had a reasonable expectation of privacy. Another lawyer might credibly argue that this camera was not really placed where it was for crime detection, it was there to collect evidence in the child’s room rather than keeping an eye on the wife’s jewelry.
Like audio recordings, the rules regarding video recordings are complicated and fact-specific. Generally speaking, to avoid issues down the line, you should avoid video recordings of another person 1) when the recording is without the consent of that person and 2) when the recording is conducted in a place where that person has a reasonable expectation of privacy. If you have a question about a video recording, try to ask your lawyer before making the recording. We may not be able to protect you from disclosing the video if asked during the course of your case, and it could subject you to serious implications. You should hire a lawyer that has a good working grasp of the intersection between family law and criminal law.