09/24/2020 by Kathleen Panagis, Esq.
This article is published in Southeastern Virginia Community Associations Institute’s (“SEVA-CAI”) Currents newsmagazine (Quarter 2 edition) and is re-printed with permission.
With most people in modern society having smart phones that have cameras and video recording capability coupled with the soaring popularity of residential security cameras, one may wonder to what extent does one have a right of privacy should their image and/or behavior be captured. One may also ponder such question when perusing through ample social media platforms, blogs, or news sites where countless photos and/or videos of persons other than the individual who uploaded such material are posted. With the advent of these image-capturing and recording devices as well as the around-the-clock posting of such photos or videos of others, it should come as no surprise that, at least in Virginia, there is no right of privacy unless granted by statute. See Evans v. Sturgill, 430 F.Supp. 1209, 1213 (W.D. Va. 1977).
The one—and only—statute in Virginia that addresses the right of privacy is found at Va. Code § 8.01-40. This statute provides that if a person’s name, portrait or picture is used for advertising purposes or for purposes of trade without such person’s written consent, then such person is authorized to bring a civil lawsuit against any person, firm or corporation for their unauthorized use of the person’s name or image. The person bringing this type action, if successful, could be entitled to equitable relief, such as an injunction, in addition to monetary damages.
It is important to note that using one’s name, portrait or picture “for advertising purposes” or “for purposes of trade” are two separate and independent statutory concepts. See WJLA-TV v. Levin, 264 Va. 140, 160 (2002). The Supreme Court of Virginia has ruled that a name is used “for advertising purposes” when “it appears in a publication, which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.” Id. at 160 (citations omitted). As for what would qualify as an unauthorized use “for purposes of trade,” Virginia case law is not as robust on this particular concept; nonetheless, a court ruled that an interview of a person published in a magazine did not constitute a trade purpose (or for an advertising purpose). See, e.g., Falwell v. Penthouse Int’l, Ltd., 521 F.Supp. 1204, 1210 (W.D. Va. 1981).
Although Va. Code § 8.01-40 does provide a limited right of privacy, there are two sets of exceptions to this statutory right. Such exceptions pertain to items that are “newsworthy or matters of public interest” or for items that are “incidental to purpose of the work.” See Williams v. Newsweek, 63 F.Supp. 2d 734, 736-738 (E.D. Va. 1999). For items that are newsworthy or matters of public interest, such exception applies “so long as there is a ‘real relationship between’ the use of a person’s name or image and the report,” and “the report is not merely ‘an advertisement in disguise.’” WJLA-TV, 264 Va. at 161 (citations omitted). Further, for uses that are claimed incidental, “a publisher will only be held liable for the publication of an unauthorized picture if there is a ‘direct and substantial connection between the appearance of the plaintiff’s name or likeness and the main purpose and subject of the work.’” Williams, 63 F.Supp. 2d at 737 (citation omitted).
Now, just because there is a limited right of privacy in Virginia does not mean there are no measures in place for certain types of unauthorized images or recordings taken. Fortunately, several Virginia criminal statutes provide protection to the privacy of persons in other ways. Below is a sample of criminal code sections that are aimed at protecting one’s privacy. Depending on the circumstances, there may be additional criminal code sections that could be evoked.
- Code § 18.2-216.1 makes it unlawful for a person, firm, or corporation to knowingly use the name, portrait or picture of any person for advertising purposes or for purposes of trade without having first obtained written consent from such person. A violator could be found guilty of a misdemeanor and subject to a fine between $50 to $1,000.
- Code § 18.2-130 makes it a Class 1 misdemeanor for any person who enters upon the property of another and secretly peeps or spies into or through a window, door or other aperture of any building, structure or other enclosure intended to be a dwelling, and also makes it criminal for a person to peep or spy into a restroom, dressing room, locker room, hotel room, bedroom, or other enclosure where one has a reasonable expectation of privacy for the purpose of viewing any nonconsenting person who is nude, clad in undergarments, or in a state of undress.
- Code § 18.2-130.1 makes it unlawful for a person to cause an electronic device to enter the property of another to secretly peep or spy into or through the window, door, or other aperture of any building or dwelling enclosure. A violation of this section is a Class 1 misdemeanor.
- Code § 18.2-386.1 makes it unlawful for a person to knowingly and intentionally create a video or image of any nonconsenting person if such person is nude, clad in undergarments or in state of undress, which could be a Class 1 misdemeanor or a Class 6 felony, depending upon the age of the nonconsenting person.
- Code § 19.2-62 it is unlawful for a person who intentionally intercepts or records any wire, electronic or oral communication without having at least one party to the conversation consent or where a person who is uttering an oral communication that has a justifiable expectation such communication is not subject to interception. A violator could be found guilty of a Class 1 misdemeanor or a Class 6 felony depending on the underlying actions.
With the rising increase of technological advances, privacy may continue to erode with each innovation. Yet, Virginia provides some statutory guards aimed at protecting people’s privacy. Perhaps when in public people should be mindful that certain images and/or videos of themselves could be captured without recourse.
About the Author:
Kathleen W. Panagis is an Of Counsel attorney with Vandeventer Black LLP and a member of the firm’s Community Associations law team. With more than a decade of experience, she serves as general counsel to homeowner and condominium associations located in Virginia. Kathleen is an active member of SEVA-CAI and serves as a member of the chapter’s Communications Committee. Kathleen would like to give recognition to James J. Levantino, who is a rising third-year law student at Tulane University Law School, for his research assistance for this article.
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