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. Va. Code Ann. § 19.2-62 (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 expectations but does not include any electronic communication.” Va. Code Ann. § 19.2-61. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

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. Id.

Hidden cameras: It is a misdemeanor to photograph or record a fully or partially nude person, and to “up-skirt” or “down-blouse,” or secretly photograph or record a person under or through his or her clothing, in a place where the person has a reasonable expectation of privacy. Va. Code Ann. § 18.2-386.1. 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 felony offense. Va. Code Ann. § 19.2-62.

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, $400 a day for each day of violation or $4,000, and can recover punitive damages, attorney’s fees and court costs as well. Va. Code Ann. § 19.2-69.

Disclosing recordings: Disclosing the contents of a wire, electronic or oral communication obtained through illegal recording is a felony. Va. Code Ann. § 19.2-62.