Reporter's Recording Guide
Last updated December 2021Compare
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.Compare
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).Compare
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.Compare
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).Compare
Illegally recording an in-person, telephone or electronic conversation is a felony offense. W. Va. Code § 62-1D-3.Compare
Anyone whose in-person, 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.Compare
Disclosing the contents of an in-person, telephone or electronic conversation obtained through illegal recording is a felony. W. Va. Code § 62-1D-3.
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); Yurish v. Sinclair Broad. Grp., Inc., 866 S.E.2d 156, 165–66 (W. Va. 2021). 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 Fourth Circuit, which includes West Virginia, has not yet directly addressed the First Amendment right to record.Compare