Reporter's Recording Guide
Last update May 2020Compare
An individual who is a party to or has the consent of at least one of the parties to a private in-person conversation or a telephone or electronic communication can lawfully record that conversation or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act.
New Jersey also prohibits images made or disclosed in violation of its hidden camera law.
Violators of the recording laws may be subject to both criminal and civil penalties, while the hidden camera law has criminal penalties.Compare
New Jersey’s Wiretapping Act requires the consent of at least one party to a conversation before recording an in-person conversation in which a person has a reasonable expectation that such communication is not subject to recording. N.J. Stat. Ann. §§ 2A:156A-2, -3, -4. Recordings made “for the purpose of committing any criminal or tortious act” are illegal regardless of consent. N.J. Stat. Ann. § 2A:156A-4.
A journalist does not need consent, however, to record conversations in public where there is no reasonable expectation of privacy or in other places parties should know they are being recorded. For example, a state appellate court held that the circumstances surrounding a news organization’s recording of events in a hospital emergency room indicated there was no reasonable expectation of privacy for any conversations captured by the filming. Kinsella v. Welch, 827 A.2d 325 (N.J. Super. Ct. App. Div. 2003). “The record does not suggest that any of [the news media’s] videotaping was done surreptitiously. In fact, the footage in the two programs produced from the videotaping at [the hospital] appear to have been taken with hand-held cameras that would have been evident to any person who was being videotaped. Therefore, there is no basis for concluding that [the news organization] violated the Wiretapping Act in videotaping plaintiff. . . .” Id.Compare
Telephone and electronic communications
The consent of at least one party to any telephone or electronic communication is required to record it, unless the person is doing so for the purpose of committing a criminal or tortious act. N.J. Stat. Ann. §§ 2A:156A-3, -4.
Because the provision of the statute dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent of at least one party likewise is required to disclose the contents of text messages sent between cellphones. N.J. Stat. Ann. § 2A:156A-2.Compare
It is a crime of the third degree to photograph or record a person’s “intimate parts,” someone engaged in a sexual act or a person’s “undergarment-clad intimate parts” in a place where the person has a reasonable expectation of privacy, and to disclose any images obtained by these means. N.J. Stat. Ann. § 2C:14-9.
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 (e.g., filming conversations on public streets or a hotel lobby).Compare
Illegally recording, disclosing or using the contents of an in-person or telephone conversation or electronic communication is a crime of the third degree punishable by three to five years in prison and a fine of $15,000. N.J. Stat. Ann. §§ 2C:43-3, 43-6.
Penalties for violations of the hidden camera law vary but can include up to five years in prison and a $15,000 fine. Id. In addition to those penalties, those who illegally disclose images may be fined up to $30,000. N.J. Stat. Ann. § 2C:14-9.Compare
Anyone whose in-person, telephone 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 $1,000, and can recover punitive damages, attorney’s fees and court costs as well. N.J. Stat. Ann. § 2A:156A-24.Compare
Disclosing or using the contents of an in-person, telephone or electronic communication while knowing or having reason to know the information was obtained illegally is a crime of the third degree. N.J. Stat. Ann. § 2A:156A-3. This does not apply, however, to any contents that have “become common knowledge or public information.” Id.
The state’s hidden camera law prohibits the disclosure of any photos or video taken in violation of that law. N.J. Stat. Ann. § 2C:14-9.
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 Third Circuit, which includes New Jersey, has held that there is a First Amendment right to film and audio record “police officers conducting their official duties in public.” Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017).Compare