Secretly video recording your spouse in a private place is a felony in Georgia, and the recording cannot be used in your divorce.
What the Statute Prohibits
OCGA 16-11-62(2) makes it unlawful for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view.” A private place is one “where there is a reasonable expectation of privacy.” OCGA 16-11-60(3). Evidence obtained in violation is inadmissible, OCGA 16-11-67, and a violation is a felony carrying one to five years, a fine of up to $10,000, or both, OCGA 16-11-69.
The Exceptions Are Unsettled in Divorce Cases
The statute has exceptions, including one for security, crime prevention, or crime detection within the curtilage of the user’s own residence. OCGA 16-11-62(2)(C). Its reach between spouses is not settled. In Rutter v. Rutter, 294 Ga. 1 (2013), a divorce case in which the wife installed several video surveillance devices in the marital home, the Georgia Supreme Court held in 2013 that the subparagraph was not then in force. The General Assembly re-enacted it in 2015.
The Criminal Statute Is Not the Only Exposure
In Rimert v. Meriwether & Tharp, LLC, 361 Ga. App. 589 (2021), a husband put a covert camera in his wife’s bedroom during their divorce, on the advice of counsel, and it recorded her with another person. The day after he admitted it in open court, the State issued a warrant for his arrest for aggravated stalking and unlawful surveillance, and he was later indicted. The Court of Appeals also held that potential criminal liability under the surveillance statute was “irrelevant to their civil liability under common law invasion of privacy,” leaving the person who was recorded free to sue.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!