A Primer on Ohio Video Recording Laws
At the state level, few governing statutes are specifically relevant to video recording. Instead, broad state privacy principles are implicated, along with a patchwork of specific statutes relevant in specific contexts; such as the Wiretap Act (Ohio Rev. Code § 2933.52), the Video Voyeurism statute (Ohio Rev. Code § 2907.08), and the Computer Trespass statute (Ohio Rev. Code § 2913.04). The Federal Wiretap Act (18 U.S.C. § 2510 et seq.) also applies to Ohio.
In the absence of a generally applicable video recording law, Ohio courts rely on basic privacy principles, including laws of agency, estate, and corporate law. In concluding that video recorded by an office receptionist may not be disclosed to an employer, the court in Solano v. Ohio Desk & Chair Co., No. 4:07 CV 1977, 2009 U.S. Dist. LEXIS 67200 (N.D. Ohio July 1, 2009), noted that the employee had a reasonable expectation of privacy because "[t]he video was recorded without any notice or expectation that others would view the recorded images in the absence of customer grievances, misfeasance or malfeasance."
The Video Voyeurism statute prohibits the illegal use of video equipment to secretly record "another person, with purpose to secretly capture their image […] under or through the clothing" of the other person, for the purpose of observing the person’s "body or undergarments . " Ohio Revised Code § 2907.08. Specifically, the statute prohibits use of a "camera, videotape recorder, motion-picture projector, or any other device or optical instrument, for the purpose described above." This language is specific to mechanical means, and will not apply to any digital video or photo attached to an email.
Inserting a video recorder into a computer may be the "use of a device" within the meaning of the statute, but is likely subject to the exception for "information transmitted through open and public communication." Ohio Rev. Code § 2907.08(B)(3). As the court observed in State v. Wilson, 119 Ohio St. 3d 36, 2008-Ohio-311, ¶ 39:
The conduct prohibited by R.C. 2907.08(A), like most voyeurism statutes, focuses on the secret observation of another person’s body without the victim’s consent. The voyeur attempts to secretly observe the victim’s body. The voyeur takes the victim’s image into his mental ‘storehouse’ by using his own eyes, while the voyeur hides from the victim the act of observing her. Although the voyeur may later attempt to use the stored images for a purpose other than his mental health, such as for public display or private profit, intent at that stage is legally irrelevant.
Ohio: Who Needs to Consent?
Ohio has a specific set of laws dealing with consent and generally, whether or not consent is required to videotape someone depends on the prevailing situation. In some cases, consent is required—for example, when two people meet in person. But there are also circumstances in which it is not required. For instance, there are some forms of electronic communication that may not require consent to record, though the legality of such communications can be very context-specific, and can vary by jurisdiction and type of communication. Broken down into specific situations, the following are typical consents required in Ohio: • Two-party or all-party consent to record person-to-person communications that would otherwise be private • Only one consent is needed if the recording is intended for personal use or if the individuals being recorded are part of a public environment, such as live social media broadcasts • No consent is needed for recording ambient noise • A person under 18 cannot consent to recording. The existence of certain exceptions to the law does not provide immunity against prosecution, but particularly in the case of those communicating in a public environment, you may be able to mitigate your risk by making sure the people being recorded are aware they are being recorded. Once again, this is very context-specific; in some cases, the mere act of watching a live-streamed video can be considered consent to be recorded. There are cameras, portable video recording devices and audio recording devices that are readily available to the average consumer, and the cost has gone down significantly in recent years. This means that it’s easy for people to record multiple aspects of their lives and broadcast the resulting tapes in real time via social media. Ohio looks at many of these situations on a case-by-case basis to determine whether criminal charges apply. In general, there needs to be at least two people who consent to the recording in order for it to be legal, but even in the implementation of that aspect of the law, Ohio considers factors such as whether or not the environment is public and whether the person being recorded is a minor who cannot consent. Knowing the full extent of your rights in Ohio is crucial to not inadvertently violating the law. It’s also important to consider the context in which people might be recording you and your family to understand why you might be recorded without consent. The best way to be prepared is to be informed.
Where Can You Record – and Where Can’t You?
There are some general expectations of privacy that exist when in private, as opposed to public areas. These expectations are recognized by Ohio law and are fundamental to establishing a privacy right. For example, in Ohio certain criminal laws protect individuals against having their image or voice captured by other individuals when in private like homes, restrooms, locker rooms, and other places where the expectations of privacy are high. Ohio law recognizes these expectations and criminalizes the act of secretly taking images of others in these areas. The law does balance, however, situations with public spaces where there is no expectation of privacy. In these areas, unless otherwise restricted by a sign or law, audio and video recordings are permitted. Take, for instance, the sidewalk outside a busy building or the road between two residential buildings. If an individual makes an audio or video recording while on a sidewalk or roadway absent circumstances that are plainly unusual for such a location – such as shouting profanities, interfering with traffic, destroying property, etc. – no expectation of privacy is generally created. Further, some restrictions like those imposed on police officers and CCTV are prohibited. This is not to say, though, that the only restriction that may be imposed on audio and video recordings in a public space is a sign. Sometimes, it also depends on the nature of the individual making the recording and the nature in which it is made. For example, an undercover officer has different standards placed on them than the average citizen.
Consequences of Breaking Video Recording Laws
The consequences of violating Ohio video recording laws can vary depending on the specific law that has been broken. However, there are some common penalties that offenders may face.
For instance, violation of Ohio’s wiretapping laws, which prohibit the recording of private conversations, is considered a first-degree misdemeanor. This means that offenders may face up to six months in jail and/or a $1,000 fine. In addition, offenders could be ordered to pay restitution to anyone that they illegally recorded. Violating wiretap laws is considered a fourth degree felony if the goal of the conversation was to commit a crime against Ohio law, such as visibly recording a naked person at a pool party without their consent.
Ohio’s voyeurism laws prohibit the act of using a camera to record or take photographs of someone who is under the age of 18 while they are undressed, disrobed or in an unclothed state for the purpose of sexual gratification. Videotaping a minor engaging in a sexual act is a third degree felony, while taking a photograph or recording a minor under the age of 16 is a fifth degree felony. If a minor is involved in a sexually explicit situation and shows signs of resistance or danger, the consequence could be an automatic enhancement of the penalty by one degree.
Making recordings of paid performers who are engaging in professional sexual exhibitions, also known as pornography, is legal in Ohio as long as some basic requirements are followed: Again, first degree misdemeanors are punishable up to six months in jail with a $1,000 fine. Fourth degree felonies are punishable by up to 18 months in prison and a fine of $5,000.
In addition, Ohio law makes it illegal to install or use a hidden surveillance device or electronic eavesdropping equipment to record a private conversation. Violators can face a first degree felony with a sentence of up to 11 years in prison and a fine of $20,000. It is also a first degree felony if the offender was hired by a company to eavesdrop on the employee’s work productivity. Note that the penalties for violating Ohio video recording laws regarding the employment of audio or visual recording devices are harsher than most voyeurism or wiretap law violations.
Ohio has a "stalking by webcam" law that applies to vloggers and bloggers who make videos of people whose privacy is invaded by unreasonable secrecy. The goal is for Ohio to be a safe place for citizens to express themselves openly without fear of retaliation.
The crux of this law is that the online expression of the victim might be data mined in order to make a video in pictures or video format without the permission of the person who expressed themselves. It also protects people from being filmed through a peephole of their home or apartment.
Even if a person is publicly and legally expressing themselves, it’s still a violation to take pictures, record videos or eavesdrop on them through a peephole, unless it can be proven that their actions were okay under another law. For instance, if the videographer or photographer was attempting to expose treason, it may be exempt.
Unique Rules for Unique Places
There are some places where video recording laws in Ohio differ from the typical considerations. Schools are one of those locations where special considerations come into play.
If you are on a school campus in Ohio, you may not be able to video. The Ohio Administration Code (OAC) 3301-35-06(H), for example, absolutely prohibits video and audio recording in educational settings without permission. Some school handbooks may specifically state that video recording is not allowed. If a handbook says that this type of recording is not allowed, it is unlikely that the school will relent and allow you to video record. Some private schools like the Rosh Hashanah High School communicate this information in their handbooks, so check with individual institutions. You may also be denied even for a general event such as graduation. Check with schools that you wish to visit and video record. They might require permission, or they might have signage prohibiting video and audio recording .
When it comes to private businesses, Ohio law is a bit more relaxed about taking video and audio in stores, on property, or on business grounds. However, if an employee or staff member asks you to stop and you refuse, you might be asked to leave. From a just-a-simple-southern-boy-who-just-won’t-listen-health-wise perspective I would advise you to excuse yourself from the premises. If something happens and someone tries to press charges or complain, there will be a video taping of your refusal to leave when you asked. That can land you in hot water quickly, and is entirely unnecessary.
When it comes to government buildings such as courthouses in Ohio, you will often find a sign out front prohibiting cameras, video, audio recording, or even some mobile phone use. A sign of that nature is an indicator that you can’t just stroll up and set up a camera. You will be forwarding your own agenda if you do go through that door and continue. The guard might stop you and ask you to leave, and you will be fully within your rights to leave and re-contact to see if you can get permission at a later time.
Implications of Video Recording Laws in Ohio for People and Businesses
In Ohio, video recording laws impact individuals in numerous ways. On a daily basis, people are recorded at work, on the street, in stores, at restaurants, and at various events. For instance, most people are likely to be filmed on television, which is a type of "video" that may be subject to Ohio’s video recording laws. At work, individuals may find themselves on the receiving end of a security camera, with their every move, action, and conversation being captured and stored somewhere. Even when you think you are not being recorded, you might very well be. For example, many businesses capture video footage of individuals on their properties for security purposes. In supermarkets, people can regularly be seen trying to steal items or try to understand what was supposed to be a "quick trip" to a store, but it turns out to be something else. While individuals are often aware of the privacy concerns inherent in these settings, they assume that businesses have properly followed the law in regard to their video recording efforts.
Most businesses in Ohio utilize video surveillance as a crime deterrent and to protect their buildings from theft or vandalism. For instance, in Cuyahoga Heights, Ohio, the Village moved forward with a plan to add cameras to various entry points and community locations. Officials stated that the video footage can help to solve crimes, assist in auto accidents, track stolen cars, and monitor activities that occur at parks, ball fields, and municipal buildings. The system was intended to include 39 cameras at intersections and municipal buildings throughout the community. However, after the Village received pushback from the public about the security program, the officials terminated it. One of the major concerns was that the cameras were likely capturing audio recordings of individuals as well.
No doubt, Ohio’s video recording laws come into the forefront when it comes to these incidents because most businesses do not want to break the law. Thus, many individuals need to understand how Ohio’s video recording laws impact them and how businesses can better understand the law so that you don’t face civil or criminal penalties. Best practices for compliance in Ohio regarding video include warning individuals that they are being recorded. You can post a sign, or you can state it over the intercom or in a recorded message. Ultimately, informing individuals that they will be audio and/or video recorded when they participate in an action or event, such as a phone call to your business, is the best way to ensure compliance with Ohio’s video recording laws.
Recent Developments: What’s Next?
The vast increases in recorded media – everything from surveillance cameras to live-streamed courthouse trials – haven’t gone unnoticed by Ohio legislators and judicial opinions. While many courts have adopted the Federal Rules of Evidence which more readily allow the admissibility of video evidence, legislators in Columbus have simultaneously limited the types of recordings that can be created and prohibited from public distribution.
House Bill 56 was introduced in March 2021 by Representative Juanita Brent (D) of Cleveland. The bill would create a new law in Chapter 2913 prohibiting the operation of certain unmanned, airborne aircraft vehicles (UAVs) equipped with recording devices. Similarly, the bill would prohibit the dissemination of recordings created without the consent of the individuals depicted in these recordings. H.B. 56 would additionally prohibit the use of UAVs in the construction of tax-supported public buildings or landscaping projects. Following up on the passage of the comprehensive Senate Bill 28, the 134th General Assembly approved H.B. 14 governing the grounds for the exclusion of relevant evidence. A key portion of the newly enacted law is the change in Ohio Rule of Evidence 403, which will now exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice (whereas formerly, only a danger of confusing the issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence would suffice as grounds for exclusion) . In light of the drastically increasing surveillance measures across the state – from doorbell cameras to ubiquitous traffic feeds to courthouse coverage of trials – the limits to admissibility set forth in H.B. 14 and the newly amended Rule 403 seek to prevent jurors from being exposed to jury blackboards of the ongoing trial. The Senate introduced further legislation (Senate Bill 13) this session to limit the availability of recorded court coverage to court personnel, judicial officers and certain media representatives. However, the report introducing S.B. 13 acknowledged that jurors would still be subject to review of court records including the electronic coverage of trial exhibits. While the focus of H.B. 56 was the prohibition of unmanned aircraft vehicles (UAVs) equipped with recording devices, the bill’s ultimate outcome of prohibiting any video recording without the consent of the subject evidences the stark change in law. Whereas Ohio previously only regulated the use of recording devices by way of the (now outdated) wiretapping laws, legislators have recently introduced a wide array of various prohibitions and limitations to recording in public and private places alike.