Below you will find the relevant criminal statutes which deal with invasion of privacy, primarily by "visual surveillance" which usually means with a video camera. The "peeping tom" of yesterday who was armed only with binoculars has now become the video or cell phone camera owner who is interested in "up skirting" or "down blousing" or worse. We handled one case (see media articles section) in which a man hid a video camera and taped a woman in the shower. He was convicted and then we sued him in civil court and a jury awarded compensatory and punitive damages.

Also listed below is the statute dealing with the penalties for violating Maryland's "wiretapping" statute, which involves listening in, but does not necessarily involve "visual surveillance."

Following the criminal statutes listed below (which also give a private right of action and a right to ask that the defendant pay the attorney's fees of the plaintiff), we have listed some of the unique "jury instructions" which may apply to an invasion of privacy case.

"VISUAL SURVEILLANCE" STATUTES:

SECTIONS 3-901, 3-902 AND 3-903 OF THE MARYLAND CRIMINAL CODE DEAL WITH "SURVEILLANCE AND OTHER CRIMES AGAINST PRIVACY."

THEY ALL SPECIFICALLY STATE THAT IN ADDITION TO CRIMINAL PENALTIES, THE DEFENDANT CAN BE SUED IN A CIVIL ACTION, AND THE COURT MAY ORDER THAT THE DEFENDANT PAY THE PLAINTIFF'S REASONABLE ATTORNEY'S FEES.

The Maryland Criminal Law Section 3-902 titled “Visual surveillance with prurient intent” was recently amended in order to catch the "up skirters" and "down blousers" who were invading peoples' privacy in public places such as restaurants, malls and on the street. The new amendment took effect on October 1, 2006.

Before it was amended, Section 3-902 dealt mainly with videotaping someone in a private place (dressing room, bedroom, shower, etc.). With the problems created by “up skirting” and “down blousing” and the fact that many women are photographed without their consent in PUBLIC places such as on the street, and in malls and restaurants, Maryland amended its law to prohibit taking a picture or videotaping THE “PRIVATE AREA OF AN INDIVIDUAL” WITHOUT THEIR CONSENT, “REGARDLESS OF WHETHER THE INDIVIDUAL IS IN A PUBLIC OR PRIVATE PLACE.” They defined “the private area of an individual” as “THE NAKED OR UNDERGARMENT-CLAD GENITALS, PUBIC AREA, BUTTOCKS, OR FEMALE BREASTS OF AN INDIVIDUAL.”

Bottom Line: before this amendment, it was arguably not a crime to up skirt or down blouse a person who was on a public street. Now it is illegal, and in addition to compensatory and punitive damages, the court may order the defendant to pay the reasonable attorney's fees of the plaintiff in a civil case.

§ 3-901. Visual surveillance.

(a) Definitions.-

(1) In this section the following words have the meanings indicated.

(2) "Private place" means a dressing room or rest room in a retail store.

(3) "Visual surveillance" means surveillance by:

(i) direct sight;

(ii) the use of mirrors;

(iii) the use of cameras; or

(iv) the use of an electronic device that can be used surreptitiously to observe an individual.

(b) Scope of section.- This section does not apply to any otherwise lawful surveillance conducted by a law enforcement officer while performing official duties.

(c) Prohibited.- A person may not conduct or procure another to conduct visual surveillance of an individual in a private place without the consent of that individual.

(d) Penalty.- A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 30 days or a fine not exceeding $1,000 or both.

(e) Prohibited defense.- It is not a defense to a prosecution under this section that the defendant owns the premises where the private place is located.

(f) Civil action.-

(1) An individual who was under visual surveillance in violation of this section has a civil cause of action against any person who conducted or procured a person to conduct the visual surveillance.

(2) In an action under this subsection, the court may award actual damages and reasonable attorney's fees.

[An. Code 1957, art. 27, § 579; 2002, ch. 26, § 2.]

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§ 3-902. Visual surveillance with prurient intent.

(a) Definitions.-

(1) In this section the following words have the meanings indicated.

(2) "Camera" includes any electronic device that can be used surreptitiously to observe an individual.

(3) "Female breast" means a portion of the female breast below the top of the areola.

(4) "Private area of an individual" means the naked or undergarment-clad genitals, pubic area, buttocks, or female breast of an individual.

(5) (i) "Private place" means a room in which a person can reasonably be expected to fully or partially disrobe and has a reasonable expectation of privacy, in:

1. an office, business, or store;

2. a recreational facility;

3. a restaurant or tavern;

4. a hotel, motel, or other lodging facility;

5. a theater or sports arena;

6. a school or other educational institution;

7. a bank or other financial institution;

8. any part of a day care home used for the care and custody of a child; or

9. another place of public use or accommodation.

(ii) "Private place" includes a tanning room, dressing room, bedroom, or restroom.

(6) (i) "Visual surveillance" means the deliberate, surreptitious observation of an individual by any means.

(ii) "Visual surveillance" includes surveillance by:

1. direct sight;

2. the use of mirrors; or

3. the use of cameras.
(iii) "Visual surveillance" does not include a casual, momentary, or unintentional observation of an individual.

(b) Scope of section.- This section does not apply to a person who without prurient intent:

(1) conducts filming by or for the print or broadcast media;

(2) conducts or procures another to conduct visual surveillance of an individual to protect property or public safety or prevent crime; or

(3) conducts visual surveillance and:

(i) holds a license issued under Title 13 or Title 19 of the Business Occupations and Professions Article; and

(ii) is acting within the scope of the person's occupation.

(c) Prohibited.- A person may not with prurient intent conduct or procure another to conduct visual surveillance of:

(1) an individual in a private place without the consent of that individual; or

(2) the private area of an individual by use of a camera without the consent of the individual under circumstances in which a reasonable person would believe that the private area of the individual would not be visible to the public, regardless of whether the individual is in a public or private place.

(d) Penalty.- A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $2,500 or both.

(e) Civil action.-

(1) An individual who was under visual surveillance in violation of this section has a civil cause of action against any person who conducted or procured another to conduct the visual surveillance.

(2) In an action under this subsection, the court may award actual damages and reasonable attorney's fees.

(f) Other remedies.- This section does not affect any legal or equitable right or remedy otherwise provided by law.

(g) Effect of section.- This section does not affect the application of § 3-901 of this subtitle.
[An. Code 1957, art. 27, § 579B; 2002, ch. 26, § 2; 2003, ch. 165; 2004, chs. 25, 361; 2006, ch. 292.]
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§ 3-903. Camera surveillance.

(a) "Camera" defined.- In this section, "camera" includes any electronic device that can be used surreptitiously to observe an individual.

(b) Scope of section.- This section does not apply to:

(1) an adult resident of the private residence where a camera is placed;

(2) a person who places or procures another to place a camera on real property without the intent to conduct deliberate surreptitious observation of an individual inside the private residence;

(3) a person who has obtained the consent of an adult resident, or the adult resident's legal guardian, to place a camera on real property to conduct deliberate surreptitious observation of an individual inside the private residence;

(4) any otherwise lawful observation with a camera conducted by a law enforcement officer while performing official duties;

(5) filming conducted by a person by or for the print or broadcast media through use of a camera that is not secreted from view;

(6) any part of a private residence used for business purposes, including any part of a private residence used as a day care home for the care and custody of a child;

(7) filming of a private residence by a person through use of a camera that is not located on the real property where the private residence is located; or

(8) any otherwise lawful observation with a camera of the common area of multiunit family dwellings by a person that holds a license under Title 13 or Title 19 of the Business Occupations and Professions Article, acting within the scope of the person's occupation.

(c) Prohibited.- A person may not place or procure another to place a camera on real property where a private residence is located to conduct deliberate surreptitious observation of an individual inside the private residence.

(d) Penalty.- A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $2,500 or both.

(e) Prohibited defense.- Subject to subsection (b)(1) of this section, it is not a defense to a prosecution under this section that the defendant owns the private residence.

(f) Available defense.- A good faith reliance on a court order is a complete defense to a civil or criminal action brought under this section.

(g) Civil action.-

(1) An individual who was observed through the use of a camera in violation of this section has a civil cause of action against any person who placed or procured another to place the camera on the real property.

(2) In an action under this subsection, the court may award damages and reasonable attorney's fees.

(h) Other remedies.- This section does not affect any legal or equitable right or remedy otherwise provided by law.

[An. Code 1957, art. 27, § 579A; 2002, ch. 26, § 2; 2004, ch. 361.]

WIRETAPPING AND ELECTRONIC SURVEILLANCE STATUTES

THIS ISSUE IS DEALT WITH IN THE COURTS AND JUDICIAL PROCEEDINGS ARTICLE OF THE MARYLAND CODE. SEE SECTIONS 10-401 AND 10-402 FOR THE DEFINITIONS AND THE PROHIBITIONS. LISTED HERE ARE THE CIVIL PENALTY PROVISIONS.
§ 10-410. Civil liability; defense to civil or criminal action.

(a) Civil liability.- Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person:

(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(2) Punitive damages; and

(3) A reasonable attorney's fee and other litigation costs reasonably incurred.

(b) Defense.- A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this subtitle or under any other law.

[1977, ch. 692, § 3; 1988, ch. 607.]

INVASION OF PRIVACY JURY INSTRUCTIONS

CHAPTER TWENTY-FIVE - PRIVACY

MPJI-CV 25:1
UNREASONABLE INTRUSION UPON SECLUSION
An invasion of privacy occurs when there is an intentional intrusion upon another person’s solitude, seclusion, private affairs or concerns in a manner which would be highly offensive to a reasonable person.

MPJI-CV 25:2
APPROPRIATION OF NAME OR LIKENESS
An invasion of privacy occurs when one takes, for one’s own use or benefit, the name or likeness of another person without that person’s consent.

MPJI-CV 25:3
UNREASONABLE PUBLICITY GIVEN TO PRIVATE LIFE
An invasion of privacy occurs when matters concerning the private life of another person, which are not of legitimate concern to the public, are made public without that person’s consent and in a manner which would be highly offensive to a reasonable person.

MPJI-CV 25:4
PUBLICITY UNREASONABLY PLACING PERSON IN
FALSE LIGHT
An invasion of privacy occurs when one places another person before the public in a false light, with knowledge of or reckless disregard as to falsity, without that person’s consent and in a manner which would be highly offensive to a reasonable person.

MPJI-CV 25:5
AFFIRMATIVE DEFENSE — PRIVILEGE
A person who invades the privacy of another person is not responsible to the other person if he or she had a right to do so. (Briefly describe the privilege relied upon.) A person does not have this right if he or she acted.