New Jersey

August 1, 2012

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public. N.J. Stat. Ann. § 2A:156A-4 (West 2012).

In-person conversations: The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but does not include any electronic communication.” N.J. Stat. Ann. § 2A:156A-2. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

A state appellate court held that if the news media’s videotaping of events in a hospital emergency room for a television program recorded any oral communication between the plaintiff and other people, such as his family members, the state wiretap statute would not apply to criminalize the activity because there was no indication that the plaintiff or any other person had a reasonable expectation of privacy in their conversations in the hospital. “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,” according to the court in Kinsella v. Welch, 827 A.2d 325 (N.J. Super. Ct. App. Div. 2003).

Electronic communications: The consent of at least one party to any telephone communication is required to record it. And 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 likewise is required to disclose the contents of text messages sent between wireless devices. N.J. Stat. Ann. § 2A:156A-2.

Hidden cameras: It is a crime of the third degree to photograph or record the “intimate parts” of a person or one engaged in a sexual act 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 (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a crime of the third degree. N.J. Stat. Ann. § 2A:156A-3.

Civil suits: Anyone whose wire, electronic or oral 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.

Disclosing recordings: Disclosing the contents of a wire, electronic or oral communication obtained through illegal recording is a crime of the third degree. N.J. Stat. Ann. § 2A:156A-3.