Reporter's Recording Guide
Last updated September 2019Compare
An individual must have the consent of at least one party to a conversation in order to legally record either an in-person or phone conversation. Intercepting such conversations without consent, as well as possessing a recording, is a misdemeanor.
State law makes it a felony to use any camera to secretly view a person in a private area without consent.Compare
At least one party must give consent in order to record an in-person conversation, unless the person recording is a party to the conversation. Ark. Code Ann. § 5-60-120.
In some instances, the court may find implied consent. For example, in 1999, the U.S. Court of Appeals for the Eighth Circuit held that a mother of a mentally disabled son could not hold a care facility at which her son had been a patient liable for invasion of privacy under Arkansas law, since the mother knew some of her conversations with the facility’s employees were being recorded and did not protest. Alexander v. Pathfinder, Inc., 189 F.3d 735 (8th Cir. 1999).
Unlike many states’ recording laws, the statute does not specifically require parties to have a reasonable expectation of privacy in order for the law to apply, implying it might even apply in public places.Compare
Telephone and electronic communications
Similarly, intercepting or recording any wire, landline, cellular or cordless phone conversation is illegal unless the person recording is a party to the conversation or at least one of the parties has given consent. Ark. Code Ann. § 5-60-120.
Arkansas law also criminalizes the “interception” of a message transmitted by telephone in its public utility laws. Ark. Code Ann. § 23-17-107.Compare
The state’s video voyeurism law prohibits the use of any camera or “image recording device” to secretly view or videotape a person in any place where that person “is in a private area out of public view, has a reasonable expectation of privacy, and has not consented to the observation.” Ark. Code Ann. § 5-16-101.Compare
Intercepting or recording in-person, telephone or electronic communications in violation of the law is a misdemeanor punishable by up to a year in jail. Ark. Code Ann. § 5-4-401. In addition, the court may impose fines of up to $2,500. Ark. Code Ann. § 5-4-201.
Violation of the state’s video voyeurism law is a felony punishable by up to six years in prison. Ark. Code Ann. § 5-4-401. The court may also impose fines of up to $10,000. Ark. Code Ann. § 5-4-201.Compare
The statute does not authorize civil lawsuits against violators.Compare
Arkansas does not prohibit the distribution of recordings, but the statute does prohibit the possession of recordings made in violation of its statute, regardless of whether the person made the recording. Ark. Code Ann. § 5-60-120.
The state prohibits the distribution or posting to the Internet of video recordings, film or photograph in violation of its video voyeurism laws, but only if the images were made “[f]or the purpose of viewing any portion of the other person's body.” Ark. Code Ann. § 5-16-101.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Eighth Circuit, which includes Arkansas, has not yet directly addressed the First Amendment right to record, although it has favorably cited the federal courts of appeal that have recognized a right to record police activity in public. Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020).Compare