Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public. Tenn. Code Ann. § 39-13-601 (West 2012).
In-person conversations: The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.” Tenn. Code Ann. § 40-6-303. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.
Electronic communications: The consent of at least one party to any telephone communication, including one transmitted wholly or partly by a cellular telephone, is required to record it. And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Tenn. Code Ann. §§ 40-6-303, 39-13-604.
Hidden cameras: It is a misdemeanor to photograph or record, “for the purpose of sexual arousal or gratification,” a person when the person has a reasonable expectation of privacy if the image “would offend or embarrass an ordinary person” who appeared in the photograph, and a felony to disclose to any person the image obtained by these means. Tenn. Code Ann. § 39-13-605. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).
Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. Tenn. Code Ann. § 39-13-602.
Civil suits: Anyone whose wire, oral or electronic communication has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation or $10,000, and can recover punitive damages, attorney’s fees and court costs as well. The statute also allows anyone whose wire, oral or electronic communication is or is about to be recorded or disclosed in violation of the law to seek to enjoin and restrain the violation in addition to suing for damages. Tenn. Code Ann. § 39-13-603.
Disclosing recordings: Disclosing the contents of a wire, oral or electronic communication obtained through illegal recording is a felony. Tenn. Code Ann. § 39-13-602.