PRIVACY RIGHTS IN COMMUNITY ASSOCIATIONS
By Community Association Law ShareApril 1, 2020 Posted in
As technology has improved and at the same time has become less expensive, the ability to maintain privacy has been rapidly diminishing. For about $30.00 and a half hour of your time, you can look up almost anyone on the internet, find out their current and past employment, their current and past addresses, the names and addresses of their relatives, whether they have ever been arrested, received a motor vehicle summons, or gotten a divorce. Your movements are increasingly recorded as you appear in public or semi-public places, by municipal cameras, private security cameras, “Ring” devices, drones, and even satellite imagery. Over time, computers will be getting smaller – about the size of a grain of sand. They will eventually be incorporated into clothing. You may literally be able to wear a shirt that records a person or event.
This ever-changing electronic environment will no-doubt impact the law of privacy over time, but until that occurs, there are some things that are “not okay” from a legal perspective, and until the law changes there are certain behaviors that can get you in trouble if you’re not careful.
Invasion of Privacy is a Tort (or “legal wrong”). It is an intentional act that violates a person’s “reasonable expectation of privacy”. Unfortunately, what a reasonable expectation of privacy consists of is not always clear. There is even disagreement among certain jurisdictions as to what it means in certain types of instances. The New Jersey Supreme Court, in a criminal case in which police picked up a person’s garbage to find out if he was engaged in the distribution of drugs, found a reasonable expectation of privacy in the contents of garbage left at curbside. The Court reasoned that while there is no particular level of suspicion required to pick the garbage up, a warrant is required, based upon probable cause to search the garbage can or bag’s contents. State v. Hempele, 120 N.J. 182 (1990), (taking a different position than the U.S. Supreme Court. See California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988).
The case of Soliman v. Kusher Companies, 433 N.J. Super. 153 (App. Div. 2013) serves to illustrate the Court’s view of what a reasonable expectation of privacy entails. Employees and tenants of a Kushner commercial office building sued the Kushner Companies and companies responsible for installing and monitoring video equipment intentionally concealed inside smoke detectors in four public bathrooms (two male and two female).
Defendants claimed they focused on common areas of the bathrooms only, where the washbasins were located. The equipment was installed in response to complaints by certain tenants of vandalism and damage to bathroom facilities, including causing the toilets to overflow or being rendered unusable, either intentionally or negligently. The monitoring devices were in what should have been a locked closet connected to a rest room. One such closet was inadvertently left open and the monitoring equipment was discovered.
The Court found that a rational jury could find that “shielding cameras from detection by placing them inside facially innocuous, yet ubiquitous safety devices, such as smoke detectors, is more suggestive of a sinister voyeuristic purpose than a good-faith reasonable attempt to combat vandalism”. The Court also found that the Kushner Defendant disregarded the suggestion made by the Police Department that a sign be erected on the bathroom doors alerting all who enter that the bathroom’s common areas were being monitored.
The Court viewed the constitutional protection against unreasonable searches and seizures under the Fourteenth Amendment as “a national expression of public policy, a moral compass to help us focus on the values that are at stake in this case.” In addition, the Court cited to Article 1, Paragraph 1 of the New Jersey Constitution, providing New Jersey citizens a means to seek legal redress against all those who seek to undermine or violate their privacy, regardless of their status as public or private actors, citing Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). The Court found that Article 1 of our State Constitution guarantees to all the right of privacy. It went on to say that “we have enforced this constitutional right with equal vigor, finding it to encompass the right of an individual to be protected from any wrongful intrusion into his [or her] private life which would outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. John Doe v. Poritz, 142 N.J. 1 (1995).
The Court cited to the Restatement of Torts (Second), Section 652B (1977) and the Court in Hennessey, supra, to find a tort of “intrusion on seclusion”, imposing civil liability on one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person.
Some examples of cases considering the right of privacy were provided by the Court:
- A private investigator using an electronic positioning satellite (GPS) device to track the wife of his client, who the husband suspected of infidelity. Villanova v. Innovative Investigations, 420 N.J. Super 353 (App. Div. 2011) cert. den. 208 N.J. 597 (2011). There the Court found that this was not an invasion of privacy unless there was evidence that she drove the vehicle into a private or secluded location that was out of the public view and in which she had a legitimate expectation of privacy.
- A woman who was sick in the hospital with a rare disease that aroused public curiosity, had a news reporter seek an interview. When she refused, he snuck into her hospital room and took her picture. This was an invasion of privacy.
- A young woman who attended a fun house, a public place of amusement, passed over a location where a jet blows skirts over the heads of women and reveals their underwear. A person takes a photograph of her in that positon. The Court found this to be an invasion of privacy, even though the invasion occurred in a public place and even though the person taking the photograph did not operate the air jet.
The Court summed it up this way: “Our analytical approach to these types of cases has not wavered. One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his [or her] private affairs or concerns is subject to liability to the other for invasion of his [or her] privacy, if the intrusion would be highly offensive to a reasonable person.
The Court found that highly offensive conduct in this regard is subject to a two (2) year statute of limitations in New Jersey, and that in cases of actual malice, punitive damages are appropriate.
THE COMMUNITY ASSOCIATION CONTEXT:
There are a number of instances in which privacy issues can arise, and the consequences of failing to act in a reasonable fashion can generate liability. Here are some examples:
- The Association Clubhouse or Pool: Often, Boards that have observed damage to their Association Clubhouse or pool furnishings seek to install cameras. With the modern technology now available, they can be monitored at will, on a cell phone. If the Association rents out the clubhouse for private parties, there may be a reasonable expectation of privacy as to what occurs there. If the Clubhouse has a gym, there may be a reasonable expectation that images of people working out will not be recorded and/or shared, even though if you were working out in the same gym at the same time, you would be able to see them. Bathrooms, as you can see from the Kushner case, are pretty much off limits.
The purpose for the cameras and the recordings is relevant. If they are there to identify people causing damage, then there is no reason for a Board member to be monitoring the cameras at will, from his/her cell phone. I encourage a system whereby the property manager has the password and a Board member has the device. One cannot view the recording without the other. The Property Manager makes a record of the nature and extent of the complaint of damage and the time period involved. He/she sits with a designated Board Member and they review the recording together, and report the results of their review in writing. They isolate the culprit, if they can, and save only that portion of the tape that shows the person arriving, causing damage and/or leaving. The rest of the tapes are routinely destroyed on a schedule, such as every thirty days, unless they need to be preserved for evidentiary purposes. A written policy to this effect is helpful and recommended.
A warning sign, if actions in the clubhouse or at the pool are to be recorded, should be strongly considered. Cameras should not be secreted in fire suppression systems or the like, unless the circumstances make it necessary, in which case, the necessity should be documented.
An allegation that a Board member frequently reviews clubhouse tapes for personal enjoyment or out of perversion could ruin a person, even if the allegation is totally untrue. Board members should be mindful of placing themselves in such a position.
There is also a criminal statute (N.J.S.A. 2A:58D-1b) which provides that any actor who, without license to do so, discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed, shall be liable to that person, who may bring an action in Superior Court. For purposes of this section, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
Imagine a parking lot camera that picks up an image of two people having sex in a car in a corner of the clubhouse parking lot. The Board member discovers this footage and shows it to the other Board members at a meeting. The above-cited statute has been violated.
Drones: We encourage the adoption of a drone policy. Drones, while subject to certain Federal Regulations, may invade privacy as they often have cameras that can have zoom lenses and in some cases, take very high quality pictures. The ability to invade privacy is heightened in this environment.
Sometimes, invasions of privacy can occur accidentally with drones. Imagine an engineer conducting video inspections of roofs by drone who starts recording upon take-off, and as the drone climbs to the roof, it passes by a Unit Owner’s window while she/he is in the act of undressing or making love to a spouse.
We recommend that if drones are to be used, a warning letter or email be sent to every Unit Owner and resident advising of the dates and times the drones will be in service, and cautioning everyone to take extra precautions to assure their privacy.
Security Cameras: In mid-rise and high-rise buildings, associations sometimes seek to mount cameras in the common hallways. The invasion of privacy most often complained of in this context is not the recording of people who live there, but the ability to know who comes to visit them and the times that this occurs. Again, liability with respect to this concern can be drastically reduced by having a policy whereby footage is only reviewed when there is a documented incident, by two people, one of whom has the camera and one of whom has the password.
Use of Personal Images for Commercial Gain: In Canessa v. J.I. Kislak, Inc., 97 N.J. upper. 327 (Law Div. 1967) the Canessa family had 8 children, and because of that, were having trouble finding a place to rent or buy. A newspaper reporter asked if he could do an article featuring their plight and take a photo of them. The Canessa family consented to the photo and story. The Defendant realtor read the article and was able to find a house for the Canessa family. Then, without permission, the Defendant realtor reproduced the newspaper photo and used it for its own commercial advertising purposes. The Court found this to be an invasion of privacy, even though the picture had been published in the newspaper with the Plaintiffs’ consent. Communities that have web pages and want to post photographs of Unit Owners, should, as a matter of reasonable care, ask and get written permission to use the images of Unit Owners taken at community events. This type of invasion of privacy, with respect to a person’s name or likeness, carries a 6-year statute of limitations. Smith v. Datla, 451 N.J. Super. 82 (App. Div. 2017).
Wiretapping and Electronic Surveillance Control Act: It is unlawful to record a conversation to which you are not a party. The Act, however, does not apply to video only. In State v. Diaz, 308 N.J. Super. 504 (App. Div. 1998) the Court found that a parent who recorded a babysitter, was able to consent on behalf of her child, and thus there was no violation of law by monitoring the child and the babysitter’s interactions with that child.
“The Ring”: This device is activated upon the ringing of a doorbell, or coming within proximity to a person’s front door. Boards have received complaints by Unit Owners that an association allowing these devices violates the privacy of other owners. This is particularly true in garden apartment-style buildings where four doors can be located within a few feet of one another. In other cases, there have been complaints that the focus of the camera is overly broad and captures everything that occurs at, for example, the home across the street. We have drafted Resolutions that limit the location of the devices, the angle at which they must be installed and other aspects of use and installation to address legitimate concerns.
Conclusion: At the end of the day, if you are in the public domain, or at least common area, you can expect that you are likely, at some point in your travels, to be monitored and perhaps recorded by an electronic device. You should behave accordingly, and if you do not, you run the risk of being recorded doing something you might not be very proud of. Community associations, however, are part public and part private, and therefore, a degree of care is called for when using monitoring or recording devices. When the Association uses them, it may need to warn, or it may need to assure that there are special rules in place to prevent abuses. When dealing with homeowners who wish to use their own devices, setting limits upon surveillance devices and monitoring behaviors may be necessary.
The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
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