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West Virginia

Reporter's Recording Guide

Last updated June 2020

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Summary

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. W. Va. Code § 62-1D-3.

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In-person conversations

The consent of at least one party to a conversation is required to record “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” W. Va. Code §§ 62-1D-2, 62-1D-3. Thus, consent is not needed to record conversations in public where there is no reasonable expectation of privacy.

However, the West Virginia Supreme Court held that a woman whose children’s screams could be heard by neighbors nonetheless had a reasonable expectation of privacy in her home and thus her conversations with her children were protected by the wiretap law. W. Va. Dep’t of Health & Human Res. ex rel. Wright v. David L., 453 S.E.2d 646 (W. Va. 1994).

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Telephone and electronic communications

The consent of at least one party to any telephone conversation is required to record it. W. Va. Code § 62-1D-3. And because the provision of the law 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. W. Va. Code § 62-1D-2.

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Hidden cameras

It is a misdemeanor to photograph or record a fully or partially nude person in a place where the person has a reasonable expectation of privacy. W. Va. Code § 61-8-28. 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 in a hotel lobby).

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Criminal penalties

Illegally recording an oral, telephone or electronic conversation is a felony offense. W. Va. Code § 62-1D-3.

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Civil suits

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 or $100 a day for each day of the violation, as well as punitive damages, attorney’s fees and court costs. W. Va. Code § 62-1D-12.

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Disclosing recordings

Disclosing the contents of an oral, telephone or electronic conversation obtained through illegal recording is a felony. W. Va. Code § 62-1D-3.

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