Our Vanishing Right of Privacy

September 14, 2010

An issue came up recently where a man was upset that people in his condominium complex were using the pool and Jacuzzi late at night. He wanted to take pictures of their activities to document their behavior in his complaint to the condo board. Can he do that?

The law recognizes a limited right to prevent other individuals from invading your privacy. There is a legal doctrine that there is no right of privacy for activities that are conducting in “open view.” If this person can see the activity from a window of his condo with an ordinary camera, I do not think there is any reasonable expectation of privacy. What if he can not see them from his window, but he can walk right up to them in a common area open to all condo owners. Is that still an “open view”? Does it matter what they are doing? Is there a difference between a group of friends just partying, and a couple making love? I would not think so.

My favorite case on this subject comes from the Woodstock movie. For those of us old enough to remember, in the movie about the original Woodstock festival there is a scene where a man and a woman are running through a field of tall grass, peeling off all of their clothes, and falling down together presumably to make love. One of the stage cameras had been turned around and the operator used his high powered zoom to capture this scene which actually took place behind and far from the stage in a field where no one else was around.

Well it turns out that a man had gone to the Woodstock festival but his wife could not make it. He came home and raved to her about how wonderful the festival was. When the movie about the festival came out he insisted that they go see it together. There they were sitting in the movie theater watching the movie when up popped the image of him running through the field with some other young woman. The wife divorced him. He sued the movie producers. The court held that he had no expectation of privacy. There may have been some anti-hippie bias in that ruling.

Back to our example with the condo person. What if he had to use special equipment, a high powered zoom lens or some special night vision lens to take his pictures. Would that matter? The answer is not clear.

In a more recent case, actress Jennifer Aniston was sunbathing topless in her own backyard surrounded by a fence. A photographer standing on the public sidewalk found that if he stood  in one particular spot, using a high powered zoom lens, he was able to get a picture of her which he intended to sell to some sleazy magazine. She threatened to sue. I believe he backed down and withdrew the picture. But it would have made for an interesting case.

Nowadays, satellite images are readily available on any personal computer. For example, many aerial details can be seen by using Google Maps. Does that change our reasonable expectation of privacy? An environmental group took a series of aerial photographs of the California coast, including the yard and house belonging to Barbra Streisand. She had chosen to live in a house set far back from the highway to maintain her privacy. She sued for invasion of privacy (and other claims) and lost. That type of photography is now readily available in Google Maps. Does that mean that we no longer have any right to privacy in our backyards?

That is why I love this area of law. There are no clear rules. And with advances in technology, the law is constantly changing. One of the effects is that the amount of our lives that is protected by the right of privacy is constantly shrinking. What do you think?


Don’t Trust People Who Say You Can Trust Me

September 11, 2010

I am preparing a list of my version of ‘the top ten mistakes entrepreneurs make’ for a later blog entry. The very first piece of advice is do not trust people who say you can trust me. In my experience, if someone says to you “You can trust me”, you should run away from them as fast as you can. Otherwise, you may end up with legal problems.

 People who can really be trusted do not have to say “You can trust me.” They say “You can trust me, and I will prove it to you. You want me to put it in writing, sure. You want references, sure. You want to talk to your attorney first, sure. No problem. What else do you need? I have nothing to hide.”

 But a person who is just saying “you can trust me” does not mean it. If they come up with an excuse not to put it in writing, there is a reason. They do not want you to know what they intend to do, or they want the option of changing the deal later, in their favor of course.

 A variation on the same theme is the statement “We don’t need lawyers”, or “I hate lawyers, let’s not waste our money on them.” True, there are plenty of bad lawyers who will make deals far more complicated than they need to be or even kill a good deal over minor legal concerns. But a blanket refusal to use lawyers usually has a bad reason behind it. The person making the claim does not want his deal examined too closely. Again, they probably do not want you to know what they intend to do, or they want the option of changing the deal later, in their favor of course. And they know involving lawyers will force them to put their intentions in writing and have their intentions examined by a third party.

Another variation is “We don’t have time to put it in writing. You can trust me. Let’s just proceed.” It is rarely the case that this is true. Usually it is just a negotiating tactic. It is a way of putting pressure on you to not put the deal in writing. Insist that there is time. If the deal is worth doing, it is worth doing right. And it is worth putting in writing.

 Once in a while, there is a valid reason to trust someone and not to put something in writing, but even then, it is not a good idea. I had a client who wrote a book with another person. The other person had agreed that he would write material that my client could use in her book and she would pay him half of the royalties. He was a very respected elder American Indian. He would not put their agreement in writing. He said that his word was his bond. This feeling came from a long tradition. So she agreed. He died before the book was published and his heirs, who then owned his property, including his writings, tried to stop the publication of the book, claiming there had been no deal. She had a major problem proving that he had wanted her to use his writings. Her problem could have been prevented if instead of trusting him, she had insisted on putting their deal in writing. Even if you really think you can trust the person, don’t. Get more information, put it in writing, and when it is about something that really matters, have your attorney look it over too.


Hello world!

September 10, 2010

Welcome to my blog, Marshall2Law. In this blog I will be commenting on issues involving law, business, the Internet, society, and social responsibility.  My primary target audience is socially conscious business entrepreneurs. Entries will range from business and legal tips to brief insights into major social issues. I welcome comments, suggestions and an open discussion. You can also find my blog on facebook at Law Offices of Gary Marshall.