Asked in Civil Rights and Constitutional Law for Michigan

Q: In an invasion of privacy where the Plaintiff gave the Defendant permission to do whatever with video, how do you defend

1 Lawyer Answer
Brent T. Geers
Brent T. Geers
  • Criminal Law Lawyer
  • Grand Rapids, MI
  • Licensed in Michigan

A: Too many factors at play to give a good answer, but let me provide a framework for analysis:

If you're thinking along the lines of invasion of privacy, then it would seem that this video was taken in some place or of something where an expectation of privacy existed for the person in the video (e.g. is the video taken on an open beach or in a bathroom?). A person can consent, of course, which it sounds like may have happened when he or she said "do whatever with the video". Of course, proving consent can be an issue. Unless you have the person on video saying "do whatever", or a signed writing, it could be up to a jury to determine consent by circumstantial evidence (i.e. does the person clearly know they are being taped and don't care?).

The second part of this analysis is what is going on with the video? Is it on a website generating money (e.g. commercial use)? Is it being circulated among individuals? Is it being sent to people or places with the intent to defame?

Your ability to successfully defend action an invasion of privacy suit will depend on all these factors. It makes a difference whether we're talking about you videotaping a person doing inappropriate things on a public beach, two people having sex behind some bushes, or surprising someone changing clothes.

Your best bet, though, is to avoid the possibility of finding yourself at the defense table whenever possible by simply deleting or returning the video to the subject if he or she is asking you to do so, particularly if you have no other legitimate reason to keep it other than to spite the person or believing it to be a joke.

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