Taking pictures with cameras and cellphones and sharing them with friends and family is one of the most popular pastimes on social media. It’s your constitutional right to take pictures (and video) of anything plainly visible in public spaces. However, in some circumstances, taking photos of people is illegal. Pennsylvania privacy laws regulate what you can and cannot photograph or videotape. If you enjoy taking pictures for personal or professional use, it’s a good idea to understand what’s permissible and what is not.
It's permissible to take photographs of people in public places where they have no expectation of privacy. Photographing people on private property or without their knowledge or consent is a violation of the state's privacy laws.
Understanding Pennsylvania Privacy Laws
Whether or not you can get out your camera depends on where exactly you are. If you are in an outdoor, public space, you have the right to photograph anything that is in plain view. You can take photos and videos of federal office buildings and transportation facilities (including in a subway, bus, train and airport). The one exception is Pennsylvania state and federal courts, where cameras in the courtroom are prohibited.
You also have the right to photograph or video police officers or other public officials performing official duties in public places, as long as you don’t interfere with their work. Police officers may order you to stop photographing if you are really getting in the way of a law enforcement action. If you’re asked to step back, you should comply. You should also know that law enforcement officials cannot order you to stop taking pictures. They cannot demand that you delete your photographs or your video, and under most circumstances, they cannot confiscate or search your phone or camera.
Photographing People Without Permission
The First Amendment to the U.S. Constitution guarantees freedom of speech and protects your right to take pictures and shoot video in public places. However, there are also laws that protect the privacy rights of individuals who may be the subject of your photos. Before heading out, make sure you understand when and where it is against the law to take pictures of someone without permission.
Taking photographs or video on private property is an entirely different issue. Pennsylvania privacy laws governing photographing people in private spaces are different than the statutes for taking photographs in public spaces. For example, if you are on private property such as in a corporate office building, a private home, private yard, or other privately owned space, the owner of the property decides whether or not to allow photography. If you don’t comply with the owner's wishes, you can be arrested for trespassing. Be aware that it’s not necessary to be on the property taking pictures to be liable for trespassing. Leaning over a fence to take a photo or flying over the property is also considered trespassing under the law.
Understanding Invasion of Privacy Laws
Pennsylvania’s invasion of privacy laws prohibit photographing, videotaping or otherwise recording a person without that person’s knowledge or consent in a location where that person has an “expectation of privacy.”
A recent case at a Pennsylvania casino highlights what it means to have an expectation of privacy. Two women entered the casino aware that video cameras were recording the casino’s patrons. However, they did not expect to have the cameras zoom in to record the texts and email messages on their mobile phones. The lawsuit states that they expected "lawful surveillance" at the casino but "had no basis to expect that surveillance would extend to close-up viewing and recording of her cellphone."
A more common scenario entails the ability to see into a bedroom window while standing on a public street, in which case a picture is illegal. It doesn’t make a difference whether the neighbor is clothed or unclothed. Pennsylvania’s invasion of privacy act also applies to anyone who attempts to take what’s known as “up-skirt” or “down-blouse” photos or attempts to photograph another person in an offensive or inappropriate way. The subject can report the photographer to the police. Invasion of privacy is a misdemeanor in Pennsylvania and carries a penalty of up to one year in jail.
Video Recording in a Private Space
In Pennsylvania, intrusion upon seclusion is the legal term for using a hidden camera or microphone to record a person in a personal or private space. You can be guilty of intrusion upon seclusion if your conduct intentionally invaded the private space of another for the purpose of taking photos of private behavior. The photographs or recordings must also be determined to cause suffering, shame or humiliation. An example of this would be placing cameras or microphones in someone’s bedroom without the subject's knowledge or consent.
Photographing Famous People
For the amateur and sometimes even the professional photographer, there’s nothing more exciting than spotting a famous person close enough to take a picture. But before taking a photo of your favorite celeb eating lunch or sunning at the beach, it’s important to know that, when it comes to taking pictures of the rich and famous (and sometimes infamous), there are some important legal restrictions.
If you take a photograph of a well-known person and then try to sell it to a newspaper or otherwise try to use the photo without permission for your own personal gain, you can be charged in Pennsylvania with violating the Right of Publicity statute. If the person you’re photographing is a celebrity whose photos you could easily sell to a newspaper, magazine, or profit from in some other way, taking that photo would be a violation of his rights.
Who Is a Celebrity
When it comes to who is and who is not a celebrity under this statute, the law can be tricky. The right of publicity law also requires that the person photographed must have earned her celebrity by investing time, effort and money to develop her personal brand, something she might sue to protect. For example, a photo of a member of the Kardashian family subsequently sold to a tabloid newspaper could lead to a right of publicity suit. Another example might be the sale of photos of a well-known local chef who has spent decades building his business and his reputation running a popular restaurant.
As the photographer, there are a few situations in which your celebrity photo will not be a legal violation. For instance, you're not liable if you didn’t realize a celebrity was in a photo of a crowd shot at a local event and you sold the picture or otherwise made money on it, without naming or identifying the celebrity. If the photo was used to create another work of art, such as a painting or a photo collage , the resulting work wouldn't be a violation of the statute.
Photographing People for Commercial Use
Professional photographers, or would-be professional photographers, who hope to sell their photos for commercial purposes, must obtain a full release from all their subjects. If your photos are published and the subjects have not signed releases, you can be cited for a number of offenses including the “publicity given to private life” statute. In other words, a photograph that makes an aspect of a person’s private life public is illegal, if the subject matter has no legitimate news value. For example, consider a woman who posed nude in a bathtub for a photographer who then sold the photo to a magazine without her permission. The photographer would be liable because he published a photo concerning an aspect of the woman’s private life that could be offensive to a reasonable person, and that has no legitimate concern to the general public.
Two-Party Consent for Audio and Video Taping
Many individuals with smartphone cameras are eager to take video at concerts, rallies, parties or other special events. Pennsylvania video recording laws set out when, what and who you can videotape and under what circumstances. Even though you are permitted to take pictures and video in public places, the same rules don’t always apply to the audio you may have also captured. Pennsylvania has strict wiretapping laws that make it illegal to record private conversations without consent of the people being recorded. However, it is not a violation of the wiretap law to make an audio recording of police officers carrying out official duties.
Pennsylvania courts are also working to keep up with advancing technologies including wearables like Apple Watches and Google Glass. The answer to the question “Is it illegal to video record someone in public?” is almost always the same no matter what device is used. The only question to ask before hitting “record” is whether or not the person you are taping has a reasonable expectation of privacy.
For example, if a man tapes a discussion with another person in an office in which the door is left open, Pennsylvania courts have said there is no expectation of privacy because anyone walking by could see and hear the two individuals talking. If the subject knows or should know that his actions and his conversations are not private, videotaping them is not against the law. The same would be true if the man recorded the open-door conversation with a “hidden” device, such as Google Glass, because there would still be no expectation of privacy, unlike a bedroom in a private home, for example.
Concerns About Harassment and Stalking
Pennsylvania law Title 18, Chapter 27, § 2709, defines stalking as a pattern of malicious and willful behavior that is not just a one-time event. In Pennsylvania, stalking is defined as “repeated harassment that creates substantial emotional distress.” The actions of the stalker must cause the victim to be fearful or emotionally upset. While some may think it’s just an adventure to follow celebrities from place to place trying to get photos or video, it’s considered a first degree misdemeanor in Pennsylvania. It’s a third degree felony if the photographer is charged a second time.
The same statute also defines harassment as following someone in a public place and/or engaging in a course of conduct to repeatedly commit acts that serve no legitimate purpose. A course of conduct is “a pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct.”
Most reported allegations of stalking are against estranged partners or spouses who may request a restraining order to keep offenders away from the victim, the victim’s home and place of work.
Who Has the Right to Sue
The subject of your photographs can sue you if it can proven that your actions caused her privacy to be invaded. Only the subject herself can sue. Relatives cannot sue on behalf of a subject after that subject has died. Corporations cannot claim any invasion of privacy rights. A magazine or newspaper can be held responsible if it encouraged the photographer to invade an individual’s privacy. If the subject wins the lawsuit, she is entitled to damages for harm to her privacy, mental and emotional distress and other special damages caused by the invasion of privacy.