Reporter's Recording Guide
Last updated May 2020Compare
Michigan prohibits the recording and disclosure of any private conversations, whether in person or over the phone, without the consent of all parties, by someone who is not a party to the conversation. Courts disagree whether participants to the conversation may record without permission of the other parties.
The state also prohibits the recording and disclosure of images made in violation of its hidden camera laws.
Violators can face both civil and criminal penalties.Compare
The state requires all parties to give consent before a third party, who is not part of the conversation, can record any private in-person conversation. Mich. Comp. Laws § 750.539c.
Courts disagree, however, on whether this law allows a participant in the conversation to record without the permission of the other parties, so the safer approach would be to get consent. A longstanding Michigan Court of Appeals decision found that a participant in a private conversation does not need all parties’ consent to record that conversation. Sullivan v. Gray, 324 N.W.2d 58 (Mich. Ct. App. 1982). Recently, a federal district court affirmed the Sullivan interpretation, holding that “the statute is not violated when a conversation is recorded by one of its participants.” See Opinion and Order, AFT Michigan v. Project Veritas, 4:17-cv-13292 (E.D. Mich. 2021) (Dkt. 202). The Michigan Supreme Court — the final authority on matters of state law — has not yet addressed the issue.
The Michigan Supreme Court has, however, held that, because the law only applies to a “private conversation,” one must get permission to record a conversation only when a party to that conversation has a reasonable expectation of privacy. People v. Stone, 621 N.W.2d 702, 704 (Mich. 2001). Accordingly, one does not need consent to record conversations occurring in public places, such as parks and sidewalks.
Separately, the state’s hidden camera law applies to the recording of sound in addition to video. Mich. Comp. Laws § 750.539d. Thus, the recording of conversations occurring in private places without the permission of each party entitled to privacy would be a felony under that law. Id.Compare
Telephone and electronic communications
The eavesdropping law also applies to private conversations occurring over the telephone, so participants may not record such phone calls without the consent of all other parties. Mich. Comp. Laws § 750.539c.
The state also makes it a felony to “make any unauthorized connection with” or “read or copy any message from any telegraph, telephone line, wire, cable, computer network, computer program, or computer system, or telephone or other electronic medium of communication that the person accessed without authorization.” Mich. Comp. Laws § 750.540. Therefore, consent likewise is required to read or copy the contents of text or email messages sent between telephones or other electronic devices devices. Id.Compare
It is a felony to install or use a device to observe, photograph, record sounds or images, or eavesdrop on a person in a private place where one may reasonably expect to be safe from surveillance or intrusion without the person’s consent. Mich. Comp. Laws § 750.539d. Filming on public streets and parks, for instance, would not subject a person to liability under this law. Neither would recording in an area where access is granted to a substantial portion of the public, such as a hotel lobby. See definition of “private place,” Mich. Comp. Laws § 750.539a.
The state also prohibits the surveillance, photography or recording of individuals who are naked or dressed only in their undergarments under circumstances in which the person would have a reasonable expectation of privacy. Mich. Comp. Laws § 750.539j.Compare
Violations of the eavesdropping or hidden camera laws can be punished as a felony carrying a jail term of up to two years and a fine of up to $2,000. Mich. Comp. Laws §§ 750.539c, 539d, 540.
Anyone who divulges information they know or reasonably should know was obtained through illegal eavesdropping is guilty of a felony punishable by imprisonment for up to two years and a fine of up to $2,000. Mich. Comp. Laws § 750.539e.
Anyone who distributes, disseminates or transmits a recording, photograph or video they know or reasonably should know was obtained in violation of the hidden camera laws is guilty of a felony, punishable by imprisonment for up to five years and a fine of up to $5,000. Mich. Comp. Laws §§ 750.539d, 539j.Compare
The court may award injunctive relief, as well as actual and punitive damages to anyone whose private communications were recorded or disclosed in violation of the state’s eavesdropping law. Mich. Comp. Laws § 750.539h.Compare
It is illegal to distribute, disseminate or transmit a recording, photograph or visual image — as well as the contents of any intercepted oral or electronic communication — which a person knows or reasonably should know was obtained illegally. Mich. Comp. Laws §§ 750.539d, 539e, 539j.
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 Sixth Circuit, which includes Michigan, has not yet directly addressed the First Amendment right to record.Compare