Reporter's Recording Guide
Last updated October 2019Compare
All parties must consent to the recording or the disclosure of the contents of any in-person, telephone or electronic communication in Florida. Disclosing communications in violation of the state’s statute is prohibited.
The state’s video voyeurism law bans the secret recording of images of individuals in areas where they are undressing and have a reasonable expectation of privacy.
Both criminal and civil penalties exist for violations of the recording law, while the video voyeurism law has criminal penalties.Compare
All parties to any confidential communication must give permission to be recorded, according to Florida’s eavesdropping law. Fla. Stat. § 934.03(2)(d).
Under the statute, consent is not required for the recording of an oral communication spoken by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Fla. Stat. § 934.02. For example, a speech made by the mayor at the grand opening of a new city park would not create a reasonable expectation of privacy in the contents of that communication.
The statute also explicitly excludes communications at public meetings from the consent requirements. Fla. Stat. § 934.02.Compare
Telephone and electronic communications
It is illegal to record or intercept a telephone conversation in Florida without the consent of all parties to the conversation. Fla. Stat. § 934.03(2)(d).
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 of all parties likewise is required to disclose the contents of text or email messages sent between cellphones and other electronic devices. Fla. Stat. § 934.02(a)(12).Compare
The state’s video voyeurism laws prohibit the installation of any imaging devices “to secretly view, broadcast, or record a person, without that person’s knowledge and consent” in circumstances where the person is privately exposing the body in an area where there is a reasonable expectation of privacy, including bathrooms and fitting rooms. Fla. Stat. § 810.145.
The law also bans secretly videotaping underneath or through clothing without the subject’s consent. Id.
These prohibitions, however, only apply to recordings made for the person’s “amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person,” and therefore presumably should not apply to recordings made strictly for newsgathering. Fla. Stat. § 810.145; see Parkerson v. State, 163 So. 3d 683, 690 (Fla. Dist. Ct. App. 2015).Compare
Intercepting or recording a private conversation or disclosing or trying to disclose such a recording without the consent of all parties is a felony punishable by up to five years in prison and $5,000 in fines, unless the interception is a first offense committed without any illegal purpose, and not for commercial gain. Fla. Stat. § 934.03(4)(a). In those circumstances, then, such an infraction is a misdemeanor punishable by up to a year in jail and fines of up to $1,000. Fla. Stat. § 934.03(4)(b).
Adults taking or distributing images in violation of the state’s video voyeurism law could face felony charges of up to five years in prison and $5,000 in fines. Fla. Stat. § 810.145.Compare
Those whose communications have been illegally intercepted or disclosed may recover actual damages of up to $1,000 for each day of the violation, along with punitive damages, attorney’s fees, and litigation costs. Fla. Stat. § 934.10. Either the parties alleging the violation must be Florida residents or the words of any intercepted private conversation must be spoken in Florida. See Cohen Brothers, LLC v. ME Corp., S.A., 872 So.2d 321, 324 (Fla. 3d Dist. Ct. App. 2004).Compare
The state prohibits the disclosure of any intercepted in-person, telephone or electronic communication if that person knows or has reason to know the information was obtained in violation of the state’s wiretapping statute. Fla. Stat. § 934.03(1)(c).
Similar prohibitions exist for individuals who distribute images in violation of the state’s video voyeurism law. Fla. Stat. § 810.145(3), (4).
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 Eleventh Circuit, which includes Florida, has held that there is a First Amendment right to record matters of public interest, including the conduct of police occurring on public property. See Toole v. City of Atlanta, 798 F. App’x 381, 387–88 (11th Cir. 2019); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).Compare