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Video Proof of Workplace Misconduct on Your Smart Phone May Make That Recording Available to the Public

On Behalf of | Jul 9, 2015 | Employment Law

In a June 25, 2015 decision of Jane Doe v. Bernabei & Wachtel, PLLC, et al, from the District of Columbia Court of Appeals, the court agreed with the trial court’s dismissal of employee’s claims related to public disclosure of private facts, false light, misappropriation, negligent infliction of emotional distress and intentional infliction of emotional distress all resulting from her having recorded on her iPhone she was showing as proof of sexual harassment in the workplace and it being put on YouTube.

In many states including New Hampshire, the audio recording of people without their consent would be a violation of law. However, some employees may video record conduct of coworkers or supervisors to provide proof that, in fact, that coworker or supervisor is sexually harassing them. In this case, the woman referred to for confidentiality as Jane Doe, worked as a journalist at the Washington, DC bureau of Phoenix Satellite Television, alleged that her supervisor had aggressively moved towards her touching her inappropriately and demanded that she hug him and allow him to lean against her. Part of her allegations were supported with a two-minute recording of the interaction shows the knees and shoes of a person no movement, the portion of two person’s clothing in close proximity. When that recording was released, local television stations posted it for public consumption on YouTube without her permission. She states her friends asked her about the video and her association with it which she states caused her to suffer severe emotional distress.

The court noted that given the circumstances of the case including the limited nature of what is actually showed in the video it did not set forth a claim that publicizing this matter would be highly offensive to a reasonable person and that it was of no legitimate concern to the public, a standard for making a legal claim seeking monetary damages of public disclosure of private facts. Obviously, sexual harassment in the workplace is a legitimate concern of the public and given the limited coverage of the video the judge found that it could not be considered highly offensive to a reasonable person. This individual also claimed that there was a false statement representation or imputation of her with regards to the disclosure and therefore, she was put into a “false light”. She made the allegation that the close proximity of the two people could lead people to believe that she was sexually promiscuous. The court noted that only amounted to a claim that the viewers of the video misperceived the truth not that the video itself made a false statement, representation or imputation. Therefore, there could be no claim of false light. Simply put, the court in addressing all the plaintiff’s claims found that she could not proceed forward against the publishers of the video that she took on her iPhone.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].