Reporter's Recording Guide
Last updated April 2020Compare
An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act. Ohio Rev. Code § 2933.52.Compare
The consent of at least one party to an in-person conversation is required to record “an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.” Ohio Rev. Code §§ 2933.51, 2933.52. Thus, consent is not required to record conversations in public where there is no reasonable expectation of privacy.Compare
Telephone and electronic communications
The consent of at least one party to any telephone conversation is required to record it. Ohio Rev. Code § 2933.52. And because the provision of the law dealing with wireless communications applies to “a transfer of a sign, signal, writing, image, sound, datum, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Ohio Rev. Code § 2933.51.Compare
It is a misdemeanor to trespass or “otherwise surreptitiously invade the privacy of another” to photograph or record the person “in a state of nudity,” or — regardless of whether a person has a reasonable expectation of privacy — to secretly photograph or record a person “up-skirt” or “down-blouse,” or under or through his or her clothing. Ohio Rev. Code § 2907.08. 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 in a hotel lobby).Compare
Illegally recording an in-person or electronic conversation is a felony offense. Ohio Rev. Code Ann. § 2933.52.Compare
Anyone whose oral, telephone or electronic conversation has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $200 a day for each day of the violation, or $10,000. The court may also award punitive damages and reasonable attorney’s fees and costs. Ohio Rev. Code § 2933.65.Compare
Although the law does not explicitly criminalize the disclosure of the contents of an oral, telephone or electronic conversation obtained through illegal recording, the “use” or “attempted use” of such contents, when knowing or having reason to know that they were obtained unlawfully, is a felony. Ohio Rev. Code § 2933.52.
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 Ohio, has not yet directly addressed the First Amendment right to record.Compare