Oregon: Statutory Civil Law
Contents
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Invasion of Personal Privacy
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Introduction
The Oregon invasion of privacy statutes recognize a property right in one’s likeness/image. A WMC victim could try to use these laws to prevent someone from using his or her likeness for a commercial purpose without his or her knowledge, permission, or consent.
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Text of the Statute(s)
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Or. Rev. Stat. § 30.865 – Action for invasion of personal privacy; attorney fees1
(1) A plaintiff has a cause of action for invasion of personal privacy if the plaintiff establishes any of the following:
(a) The defendant knowingly made or recorded a photograph, motion picture, videotape or other visual recording of the plaintiff in a state of nudity without the consent of the plaintiff, and at the time the visual recording was made or recorded, the plaintiff was in a place and circumstances where the plaintiff had a reasonable expectation of personal privacy.
(b) For the purpose of arousing or gratifying the sexual desire of the defendant the defendant was in a location to observe the plaintiff in a state of nudity without the consent of the plaintiff, and the plaintiff was in a place and circumstance where the plaintiff had a reasonable expectation of personal privacy.
(c) For the purpose of arousing or gratifying the sexual desire of any person, the defendant knowingly:
(A) Made or recorded a photograph, motion picture, videotape, or other visual recording of an intimate area of the plaintiff without the consent of the plaintiff; or
(B) Viewed an intimate area of the plaintiff without the consent of the plaintiff.
(d) Without the consent of the plaintiff, the defendant disseminated a photograph, motion picture, videotape, or other visual recording of the plaintiff in a state of nudity, and the defendant knew that at the time, the visual recording was made or recorded, the plaintiff was in a place and circumstances where the plaintiff had a reasonable expectation of personal privacy.
(2) A plaintiff who prevails in a cause of action for invasion of personal privacy under this section is entitled to receive:
(a) Compensatory damages; and
(b) Reasonable attorney fees.
(3) An action under this section must be commenced not later than two years after the conduct that gives rise to a claim for relief occurred.
(4) The remedy provided by this section is in addition to, and not in lieu of, any other claim for relief that may be available to a plaintiff by reason of conduct of a defendant described in subsection (1) of this section.
(5) The provisions of this subsection (1)(a) and (d) of this section do not apply to a photograph, motion picture, videotape, or other visual recording of a person under 12 years of age if:
(a) The person who makes, records, or disseminates the visual recording is the father, mother, sibling, grandparent, aunt, uncle or first cousin, by blood, adoption or marriage, of the person under 12 years of age; and
(b) The visual recording is made, recorded or disseminated for a purpose other than arousing or gratifying the sexual desire of the person or another person.
(6) As used in this section:
(a) Intimate area means:
(A) Undergarments that are being worn by a person, are covered by clothing and are intended to be protected from being seen; and
(B) Any of the following that are covered by clothing and are intended to be protected from being seen:
(i) Genitals;
(ii) Pubic areas; or
(iii) Female breasts below the point immediately above the top of the areola.
(b) Made or recorded a photograph, motion picture, videotape, or other visual recording includes, but is not limited to, making or recording or employing, authorizing, permitting, compelling or inducing another person to make or record a photograph, motion picture, videotape or other visual recording.
(c) Nudity means any part of the uncovered, or less than opaquely covered:
(A) Genitals;
(B) Pubic area; or
(C) Female breast below a point immediately above the top of the areola.
(d) Places and circumstances where the plaintiff has a reasonable expectation of privacy includes, but is not limited to, a bathroom, dressing room, locker room that includes an enclosed area for dressing or showering, tanning booth, and any area where a person undresses in an enclosed space that is not open to the public view.
(e) Public view means that an area can be readily seen and that a person within the can be distinguished by normal unaided vision when viewed from a public place as defined in ORS 161.015.
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Or. Rev. Stat. § 163.700 – Invasion of personal privacy
(1) Except as provided in ORS 163.702 (Exceptions to ORS 163.700), a person commits the crime of invasion of personal privacy if:
(a) (A) The person knowingly makes or records a photograph, motion picture, videotape, or other visual recording of another person in a state of nudity without the consent of the person being recorded; and
(B) At the time the visual recording is made or recorded the person being recorded is in a place and circumstances where the person has a reasonable expectation of personal privacy; or
(b) (A) For the purpose of arousing or gratifying the sexual desire of the person, the person is in a location to observe another person in a state of nudity without the consent of the other person; and
(B) The other person is in a place and circumstances where the person has a reasonable expectation of personal privacy.
(2) As used in this section:
(a) Makes or records a photograph, motion picture, videotape, or other visual recording includes, but is not limited to, making or recording or employing, authorizing, permitting, compelling or inducing another person to make or record a photograph, motion picture, videotape or other visual recording.
(b) Nudity means any part of the uncovered, or less than opaquely covered:
(A) Genitals;
(B) Pubic area; or
(C) Female breast below a point immediately above the top of the areola.
(c) Places and circumstances where the person has a reasonable expectation of personal privacy includes, but is not limited to, a bathroom, dressing room, locker room that includes an enclosed area for dressing or showering, tanning booth and any area where a person undresses in an enclosed space that is not open to public view.
(d) Public view means that an area can be readily seen and that a person within the area can be distinguished by normal unaided vision when viewed from a public place as defined in ORS 161.015 (General definitions).
(3) Invasion of personal privacy is a Class A misdemeanor.
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Or. Rev. Stat. § 163.702 – Exceptions to ORS 163.700
(1) The provisions of ORS 163.700 (Invasion of personal privacy) do not apply to:
(a) Any legitimate medical procedure performed by or under the direction of a person licensed to provide medical service for the purpose of medical diagnosis, treatment, education or research, including, but not limited to, the recording of medical procedures; and
(b) Any activity undertaken in the course of bona fide law enforcement or corrections activity or necessary to the proper functioning of the criminal justice system, including but not limited to the operation and management of jails, prisons, and other youth and adult corrections facilities.
(2) The provisions of ORS 163.700 (Invasion of personal privacy) (1)(a) do not apply to a visual recording of a person under 12 years of age if:
(a) The person who makes or records the visual recording is the father, mother, sibling, grandparent, aunt, uncle, or first cousin, by blood, adoption or marriage, of the person under 12 years of age; and
(b) The visual recording is made or recorded for a purpose other than arousing or gratifying the sexual desire of the person or another person.
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Cases
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State v. Mayes, 220 Or. App. 385, 186 P.3d 293 (Or. Ct. App. 2008)
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Procedural Posture: Appeal by defendant of his conviction for six counts of invasion of personal privacy under ORS 163.700.
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Law: Or. Rev. Stat. § 163.700.
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Facts: Defendant was convicted for six counts of violations of ORS 163.700 arising from his secret videorecordings. The defendant had arranged to have small cameras concealed in restrooms in his workplace, and in a doctor’s office that had hired his business to install telecommunications equipment. From January 2003 to May 2004, he secretly recorded a number of adult women and two young girls. The young girls were seven and nine, and though the former had not gone through puberty, the latter had been going through puberty for a year (according to her mother). The defendant recorded images depicting the women and girls unclothed from the waist down. The defendant was charged as to the adult women, but he appealed his conviction as to the young girls, asserting that the statute applied only to post-pubescent people. On appeal, defendant again argues that the definition of nudity in ORS 163.700(2)(b) means only post-pubescent females.
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Outcome: The court held that the term “post-pubescent” as used in ORS 163.700 referred to the time after the onset of puberty. The court reversed defendant’s conviction as to the seven-year-old victim because she had not yet gone through puberty. However, because the nine-year-old girl’s mother testified that she had been going through puberty for a year, the court upheld defendant’s conviction on that count.
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Special Notes: The court explained the background and legislative history of the statute. One of the bill’s authors told the legislators that the definition of nudity referred only to post-pubescent individuals, and later, the legislature added the term “post-pubertal” to the portion of the definition dealing with the human female breast. The court also noted that “[s]ignificantly, nothing in the legislative history suggests that the legislature made the change in order to alter the definition of nudity to make it apply to prepubertal pubic areas. . . [and although] the insertion of ‘post-pubertal’ in the reference to the human female breast still left the definition ungrammatical. . . the legislative history establishes that the definition of nudity in ORS 167.060(5) applies to human post-pubertal, not prepubertal, pubic areas, as does the definition of nudity in ORS 163.700(2)(b).”2 The court chose to draw the line at the onset of puberty because “it would seem that a person who has begun to mature sexually would feel just as violated by [being secretly videorecorded] as a person who has completed sexual maturation.”3
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State v. Luman, 347 Or. 487, 223 P.3d 1041 (Or. 2009)
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Procedural Posture: State appeal from decision reversing trial court order denying in part defendant’s motion to suppress video evidence in support of his conviction for several violations of ORS 163.700.
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Law: Or. Rev. Stat. § 163.700.
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Facts: The defendant owned a restaurant and catering service. He kept a television in the restaurant kitchen, and he instructed the restaurant staff not to use the television. Regardless, when he was not present, the staff sometimes watched television while they worked. On one occasion when defendant was out, an employee turned on the television to watch the news. However, when he did so, a videotape in the attached VCR began playing automatically. The tape displayed images of women using the restaurant’s only restroom. Smith alerted a female co-worker, Jones, and the two watched parts of the videotape. Smith and Jones then discovered wires running from the VCR into an outlet in the bathroom, and another area they thought a camera could be placed. The employees found other videotapes in the kitchen, and in a bag in the restaurant’s walk-in cooler. Some of the videotapes were hand-labeled with the names of movies; two videotapes, including the one in the VCR were hand-labeled “master.” Later that day, after showing the videos to two other employees to ask what to do with them, Jones notified the sheriff’s office, and turned over the videos. The sheriff watched the videotapes without obtaining a warrant. The two videotapes labeled “master” had been edited to remove the “dead time”; in total the videos contained images of 48 different people. Defendant was charged with 48 counts of invasion of privacy in violation of ORS 163.700. The trial court suppressed all of the videos. The trial court explained that the defendant’s privacy interests in his tapes was valid and viable because even after the employees had viewed it, his privacy interest remained. However, the court of appeals suppressed everything except—the “master.” The court reasoned that the videotapes the defendant’s employees had not already viewed did not “announce” that they contained evidence of a crime, and had to be suppressed. In contrast, the master video had been viewed and had become “apparent” by the time the police had viewed it. Accordingly, the trial court concluded that the defendant had no remaining privacy right in the “master” and refused to suppress it. The “master” contained recordings of 11 different women, and based on the video evidence, the jury found defendant guilty of 11 counts of invasion of personal privacy under ORS 163.700. The State appealed. The appeals court then suppressed all of the evidence, determining that the employees’ viewing of the master did not disrupt the defendant’s privacy interest. Accordingly, the State appealed again.
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Outcome: The court reversed the appeals court and affirmed the trial court, determining that the defendant had no privacy interest in the master after his employees had viewed it and turned it over to law enforcement because “[o]nce private parties have seized a piece of evidence, examined it, and delivered it to a police officer (thereby giving the police officer lawful possession of the evidence for criminal investigatory purposes), the police’s officer’s subsequent, confirmatory examination of that evidence involves no additional injury to any privacy interest of the property owner; any privacy interest that the property owner once may have had in that piece of evidence is destroyed, at least to the extent of the scope of the private search.”4 Nonetheless, because the employees had not viewed any of the other videos, the privacy interest was not “destroyed by private conduct,” so the defendant retained his privacy interest in those videos, and the court agreed with the trial court’s initial order suppressing them.5
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Special Notes: The dissent disagreed, and surmised that all of the videos (including the master) should be suppressed because the sheriff’s viewing of the video was a warrantless search. The dissent posited that defendant’s conduct reflected his intent to exercise his privacy interest in the images: “Here, defendant had manifested his intent to keep the images on the videotape private by instructing his employees that they were forbidden from watching the television. Moreover, defendant’s loss of possession was not because he had somehow abandoned the video cassette. Instead, the video cassette was taken from his possession without his permission. Defendant’s conduct demonstrated his intent to exercise his privacy interest in the videotape, even if, after its theft by his employees, he lost his possessory interest in the video cassette.”6 Accordingly, the court explained that because the officers knew they had received the video from the defendant’s employees rather than the defendant himself, they could not have reasonably concluded that defendant had intended to relinquish his privacy interests in the images on the tape.7
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Practice Pointers
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The invasion of privacy laws under 163.700, only protects the invasion of privacy involving individuals past the onset of puberty.8 Thus, the statute will not protect young children from child pornography.
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The law was specifically designed to protect people from surreptitious videotapes in locker rooms, tanning beds, etc.
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In a situation where police are involved with a purported invasion of privacy, a WMC victim should try to work with the police to ensure that proper procedure is followed, to avoid the suppression of evidence for violations of the defendant’s privacy interest.9
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↑ Back to top- Oregon passed the statute in 2005. It was introduced by an Oregon Senator to give rights to victims of video voyeurism. She made the tape after an Oregon man had been discovered using a camera lens to see through thin material, such as bathing suits, to photograph women at local swimming pools, and victims had no legal recourse under then-Oregon law. To date, there have been no cases evaluating the statutes. Although the law was amended by 2013 Oregon Laws Ch. 1 (H.B. 2148), but the changes are only minor, and the substance of the statute remains the same. ↩
- State v. Mayes, 220 Or. App. 385, 186 P.3d 293, 298 (Or. Ct. App. 2008). ↩
- Id. at 300. ↩
- State v. Luman, 347 Or. 487, 223 P.3d 1041, 1046 (Or. 2009). ↩
- Id. at 1048. ↩
- Id. at 1052 (De Muniz, J. dissenting). ↩
- Id. ↩
- Mayes, 186 P.3d at 298. ↩
- See, e.g., State v. Luman, 223 P.3d at 1048. ↩
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