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Ruling limits secret taping of telephone calls

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  1. Libel and Privacy

    NMU         CALIFORNIA         Privacy         Mar 21, 2002    

Ruling limits secret taping of telephone calls

  • The California Supreme Court held that consent from all parties to tape a “confidential communication” must be obtained when one of the parties reasonably expects that the conversation will not be recorded.

A California Supreme Court decision that effectively bans secret taping of phone calls means reporters must get permission from their sources before recording conversations or risk criminal penalties, attorneys for a press association and a First Amendment group said.

California law makes it a crime to intercept or eavesdrop on any confidential communication, including a phone call, without consent of all parties. California is one of a dozen states that require consent of all parties before phone conversations can be recorded, although California’s law applies only to “confidential communications.”

The state Supreme Court defined “confidential communication” in a March 14 ruling in a case that did not involve a journalist. The high court unanimously ruled that a conversation is confidential if one of the parties has an objectively reasonable expectation that the conversation is not being overheard or recorded.

Previously, California’s courts of appeal disagreed on the meaning of “confidential communication.” Some appellate courts followed the definition that the Supreme Court ultimately adopted.

Other appellate courts held that a conversation is confidential only if a party had an objectively reasonable expectation that the content would not later be divulged to third parties. That definition arguably allowed journalists to secretly record phone calls since it is reasonable to expect that conversations with reporters will be published, said Terry Francke, general counsel for the California First Amendment Coalition.

Now, however, reporters must obtain consent or risk incurring a criminal fine of $2,500 and one year in jail, and a civil penalty of at least $5,000.

“Certainly, for any journalist that had been thinking, ‘I’ve got a tape here; in case he denies saying it, I’ve got him cold,’ if the door were even open a slight crack on that proposition before, it is now thoroughly slammed,” Francke said.

Francke cautioned that even though the ruling was made in the context of a phone conversation, it also would apply to secret taping of in-person interviews.

The ruling is “a severe blow to the electronic media in California,” especially broadcast reporters who secretly tape conversations to catch someone doing something wrong, said Tom Newton, general counsel for the California Newspaper Publishers Association.

The case before the California Supreme Court involved telephone calls between Honorine Flanagan, the wife of a wealthy mortuary businessman, and Michael Flanagan, the businessman’s son by a previous marriage.

Honorine Flanagan purportedly told her manicurist that she would pay for someone to kill her husband, who eventually died of cardiovascular disease. She sued the manicurist for invasion of privacy for secretly taping phone conversations with her and playing the tapes for Michael Flanagan, whom she also named as a defendant in the lawsuit.

Michael Flanagan countersued, saying his stepmother broke the law by secretly recording his phone conversations with his father. The jury rejected Honorine Flanagan’s lawsuit against the manicurist and her stepson, and awarded Michael Flanagan $120,000 — $5,000 for each of 24 calls that were recorded — and $1.2 million in punitive damages. The trial judge reduced the damages to $5,000 and struck the punitive damages.

The California Court of Appeal decided that only two of the phone conversations were confidential and awarded $10,000 in damages. The appellate court used the definition of “confidential communication” that relies on the parties’ reasonable expectation that the content of the conversation will not be divulged.

The Supreme Court’s ruling sends the case back to the appellate court to decide the case using the definition that a communication is confidential if a party reasonably expects that the conversation is not being recorded.

(Flanagan v. Flanagan) MD

© 2002 The Reporters Committee for Freedom of the Press

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