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Nevada: Statutory Civil Law

Contents

  1. Eavesdropping
  2. Falsifying Electronic Mail
  3. Invasion of Privacy – Appropriation (AKA Right to Publicity)
  4. Unlawful Acts Motivated by Characteristics of Victim

  1. Eavesdropping

    1. Introduction

      Nev. Rev. Stat. § 200.690, allows a plaintiff to bring a civil action against a person who unlawfully eavesdropped on his/her private conversation as provided in Nev. Rev. Stat. §§ 200.620 and 200.650. While Nev. Rev. Stat. § 200.620 is specific to private conversations conducted over telephone or other forms of wire communication and requires consent of both parties to a conversation, § 200.650 applies to private conversations performed in-person and only requires the consent of one party to the conversation.1 It is not clear from the statute or case law whether the recording of sexual activity without accompanying conversation would be actionable under this statute, nor is it apparent to what extent phone calls made via cellular phone, Skype or other internet-based means are covered. It is also unclear whether text messaging is covered by the statute.

      A victim may be able to bring a civil suit against a person who published his/her private, intimate images for violation of Nev. Rev. Stat. § 200.650 if, for example, the images were recorded on video and included a conversation between the victim and another person. In order to be able to pursue this cause of action under Nev. Rev. Stat. § 200.650, however, the person who recorded the victim must not have been a party to the victim’s conversation.

    2. Text of the Statute

      Nev. Rev. Stat. § 200.620

      “1. Except as otherwise provided in NRS 179.410 to 179.515, inclusive, 209.419 and 704.195, it is unlawful for any person to intercept or attempt to intercept any wire communication unless:

      (a) The interception or attempted interception is made with the prior consent of one of the parties to the communication; and

      (b) An emergency situation exists and it is impractical to obtain a court order as required by NRS 179.410 to 179.515, inclusive, before the interception, in which event the interception is subject to the requirements of subsection 3. If the application for ratification is denied, any use or disclosure of the information so intercepted is unlawful, and the person who made the interception shall notify the sender and the receiver of the communication that:

      (1) The communication was intercepted; and

      (2) Upon application to the court, ratification of the interception was denied.”2

      Nev. Rev. Stat. § 200.630

      “1. Except as otherwise provided in NRS 179.410 to 179.515, inclusive, and 704.195, a person shall not disclose the existence, content, substance, purport, effect or meaning of any wire or radio communication to any person unless authorized to do so by either the sender or receiver.

      Nev. Rev. Stat. § 200.650

      “Except as otherwise provided in NRS 179.410 to179.515, inclusive, and 704.195, a person shall not intrude upon the privacy of other persons by surreptitiously listening to, monitoring or recording, or attempting to listen to, monitor or record, by means of any mechanical, electronic or other listening device, any private conversation engaged in by the other persons, or disclose the existence, content, substance, purport, effect or meaning of any conversation so listened to, monitored or recorded, unless authorized to do so by one of the persons engaging in the conversation.”3

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      In Lane v. Allstate Ins. Co., the Nevada Supreme Court clarified some of the ambiguities inherent in Nevada’s eavesdropping statute. First, the Court held that “person” as used in Nev. Rev. Stat. §§ 200.610 to 200.690, means any person and is not restricted to government officials.4 Second, it observed that based on the legislative history of Nev. Rev. Stat. § 200.620, it appears that the legislative intent when writing, and later amending, this statute, was to prohibit the unilateral recording of a telephone conversation without obtaining the other party’s consent.5 Lastly, the Court noted that a comparison of Nev. Rev. Stat. § 200.620 with § 200.650 indicates that the legislature seemed to be more concerned with the recording of telephone conversations than with conversations conducted in person. According to the Court:

      “In NRS 200.650, the legislature prohibited surreptitious intrusion upon in-person, private conversations by means of any listening device, but specifically added the language ‘unless authorized to do so by one of the persons engaging in the conversation.’ If the legislature had wanted to create that limitation in NRS 200.620, it would have done so. It seems apparent that the legislature believed that intrusion upon Nevadans' privacy by nonconsensual recording of telephone conversations was a greater intrusion than the recording of conversations in person.”6

      The Court held that excluding the exceptions noted in Nev. Rev. Stat. §§ 179.410 to 179.515 (applicable in situations involving the recording of telephone conversations by law enforcement officials), in order for a person to legally record a telephone conversation in Nevada under Nev. Rev. Stat. § 200.620, the person must obtain consent from both parties to the conversation.7 However, intrusion on a private, in-person conversation only requires the consent of one party.8

      A plaintiff suing under this statute may recover attorney’s fees.

      A defendant in an eavesdropping civil suit may also be criminally liable.

    1. Lane v. Allstate Ins. Co., 969 P.2d 938, 940 (Nev. 1998) ↩
    2. Nev. Rev. Stat. Ann. § 620 (LexisNexis 2011). ↩
    3. Nev. Rev. Stat. Ann. § 200.650 (LexisNexis 2011). ↩
    4. See Id. at 940. ↩
    5. Id. at 940-41 (noting that during discussion of A.B. 188, a bill that would have allowed law enforcement officials to tape-record telephone conversations with only one party’s consent, both those in favor and against the bill spoke as if the current law required the consent of both parties). ↩
    6. Id. at 940. ↩
    7. Id. at 941. ↩
    8. Id. at 940. ↩
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  2. Falsifying Electronic Mail

    1. Introduction

      This statute allows a victim to bring a civil suit against a person who nonconsensually distributed the victim’s private, intimate image(s) by email in the victim’s name. For example, this situation may arise if the person distributing the image(s) opens an email account in the victim’s name and subsequently distributes the images in question posing as the victim.

    2. Text of the Statute

      Nev. Rev. Stat. § 205.492

      “1. A person shall not willfully falsify or forge any data, information, image, program, signal or sound that:

      (a) Is contained in the header, subject line or routing instructions of an item of electronic mail; or

      (b) Describes or identifies the sender, source, point of origin or path of transmission of an item of electronic mail, with the intent to transmit or cause to be transmitted the item of electronic mail to any Internet or network site or to the electronic mail address of one or more recipients without their knowledge of or consent to the transmission.

      2. Except as otherwise provided in subsection 7, a person shall not willfully transmit or cause to be transmitted an item of electronic mail to any Internet or network site or to the electronic mail address of one or more recipients without their knowledge of or consent to the transmission if the person knows or has reason to know that the item of electronic mail contains or has been generated or formatted with:

      (a) An Internet domain name that is being used without the consent of the person who holds the Internet domain name; or

      (b) Any data, information, image, program, signal or sound that has been used intentionally in the header, subject line or routing instructions of the item of electronic mail to falsify or misrepresent:

      (1) The identity of the sender; or

      (2) The source, point of origin or path of transmission of the item of electronic mail.”1

      Nev. Rev. Stat. § 205.511

      “1. Any victim of a crime described in NRS 205.473 to 205.513, inclusive, may bring a civil action to recover:

      (a) Damages for any response costs, loss or injury suffered as a result of the crime;

      (b) Punitive damages; and

      (c) Costs and reasonable attorney's fees incurred in bringing the civil action.

      A victim of a crime described in NRS 205.473 to 205.513, inclusive, may bring a civil action pursuant to this section whether or not the person who committed the crime is or has been charged with or convicted or acquitted of the crime or any other offense arising out of the facts surrounding the crime.”2

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      This statute allows the victim to recover attorney’s fees. A defendant in this situation may also be criminally prosecuted for falsifying electronic mail.

    1. Nev. Rev. Stat. Ann. § 205.492 (LexisNexis 2011). ↩
    2. Nev. Rev. Stat. Ann. § 205.511 (LexisNexis 2011). ↩
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  3. Invasion of Privacy – Appropriation (AKA Right to Publicity)

    1. Introduction

      If the person who posted a victim’s private, intimate images without the victim’s consent is deriving a commercial use from the material, the victim may sue that person under Nevada’s right to publicity statute.

    2. Text of the Statute

      Nev. Rev. Stat. § 597.790

      “1. There is a right of publicity in the name, voice, signature, photograph or likeness of every person. The right endures for a term consisting of the life of the person and 50 years after his or her death, regardless of whether the person commercially exploits the right during his or her lifetime.”1

      Nev. Rev. Stat. § 597.810

      “1. Any commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use is subject to:

      (a) Injunctive relief to prevent or restrain the unauthorized use; and

      (b) An action at law for any injuries sustained by reason of the unauthorized use. In such a suit, the plaintiff may recover:

      (1) Actual damages, but not less than $750; and

      (2) Exemplary or punitive damages, if the trier of fact finds that the defendant knowingly made use of the name, voice, signature, photograph or likeness of another person without the consent required by NRS 597.790.”2

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      In Hetter v. Eighth Jud. Dist. Ct., the Nevada Supreme Court recognized that the statutory right to publicity under Nev. Rev. Stat. § 597.810 is not limited to celebrities.3

    1. Nev. Rev. Stat. Ann. § 597.790 (LexisNexis 2011). ↩
    2. Nev. Rev. Stat. Ann. § 597.810 (LexisNexis 2011). ↩
    3. Hetter v. Eighth Jud. Dist. Ct, 874 P.2d 762, 765 (Nev. 1994)(Plaintiff patient sued her plastic surgeon for violation of her right to publicity after the surgeon nonconsensually published her before-and-after photos). ↩
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  4. Unlawful Acts Motivated by Characteristics of Victim

    1. Introduction

      This statute allows the victim of the nonconsensual publication of his/her private, intimate images to bring a civil suit against the person who published the images, if that person committed a crime included in the statute and was also motivated by characteristics of the victim enumerated in the statute. For example, this statute would be applicable where a person posted a victim’s private images online as part of a harassment campaign against the victim and included derogatory remarks about the victim’s race or perceived sexual orientation.

    2. Text of the Statute

      Nev. Rev. Stat. § 41.690

      “1. A person who has suffered injury as the proximate result of the willful violation of the provisions of NRS 200.280 [mayhem]; 200.310 [kidnapping]; 200.366 [sexual assault]; 200.380 [robbery]; 200.400 [battery]; 200.460 [false imprisonment]; 200.463, 200.64 and 200.465 [involuntary servitude]; 200.467 and 200.468 [trafficking in persons]; 200.471 and 200.481 [assault and battery]; 200.508 [abuse and neglect of children]; 200.5099 [abuse of older and vulnerable persons]; 200.571 [harassment]; 200.575 [stalking]; 203.010, 203.020, 203.030, 203.060, 203.080, 203.090, 203.100, 203.110 and 203.119 [crimes against public peace]; 206.010, 206.040, 206.140, 206.200 and 206.310 [malicious mischief]; 207.180 [threatening or obscene letters or writings]; 207.200 [trespass]; or 207.210 [destruction of signs or notices forbidding trespass] by a perpetrator who was motivated by the injured person's actual or perceived race, color, religion, national origin, physical or mental disability or sexual orientation, may bring an action for the recovery of his or her actual damages and any punitive damages which the facts may warrant. If the person who has suffered injury prevails in an action brought pursuant to this subsection, the court shall award the person costs and reasonable attorney's fees.”1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      This statute allows the victim to recover attorney’s fees.

      A defendant sued under Nev. Rev. Stat. § 41.690 may also be prosecuted for the crime they committed against the plaintiff when violating Nev. Rev. Stat. § 41.690.

    1. Nev. Rev. Stat. Ann. § 41.690 (LexisNexis 2011). ↩
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