A person can record a phone call (as per federal phone recording device laws) only when at least one of the parties in the conversation expressed his or her consent. Moreover, the rules even get tougher in some states, which require both parties to agree. But then, there are many instances where prior consent is extremely difficult, if not totally impossible, to obtain â€“ and those scenarios are what we will be talking about. To illustrate the idea, letâ€™s first cite a specific example.
NOTE: This article is about the United States Federal Judicial System. Laws vary from country to country, state to state. For the most accurate legal advice, please consult a legal professional near you.
In the middle of 2010, the female pianist Oksana Gregorieva released a tape recording of what was allegedly a phone conversation between her and her ex-boyfriend, the actor Mel Gibson. The man in the recording verbally abused her and also threatened the her life.
The call took place in Malibu, an affluent coastal community in the state of California. Gregorieva was in her Malibu house, while Gibson was allegedly driving somewhere in the vicinity. Consequently, telephone recording device laws in California should apply to this case.
To record a phone call in California, both parties in the conversation should express consent for the recording. However, this type of requirement was not present in the above mentioned phone call. Moreover, even if the stateâ€™s phone recording rules accept an implicit consent via a clearly played â€œbeepâ€ sound, nothing of that nature can be heard before the conversation began. Thus, at least at face value, the recording should not have been admissible in court, and it would also have been illegal to release the recording publicly. However, the courts said it was not the case.
The courts declared that the phone recording, despite lacking consent, can be used as evidence.
Why is it so?
In last weekâ€™s article, it was discussed on the third point that a telephone recording should contain sufficient consent from all the parties involved in the conversation. This requirement was added in light of the concept of the right to a â€œreasonable expectation of personal privacyâ€. In a nutshell, sufficient consent can be interpreted as the need to respect personal space.
However, every rule has an exception â€“ and the judiciary also believes in that. That is, when a personâ€™s right to privacy trespasses on some other personâ€™s right, the courts would then be left to make a value judgment. In Mel Gibson and Oksana Gregorievaâ€™s case, the question was this:
Which is more important, Gibsonâ€™s right to privacy, or Gregorievaâ€™s right to life?
Courts withheld that Oksana may record the phone call without Gibsonâ€™s consent because in the eyes of the law, her interest supplants his.Â Thus the whole issue about the phone recordingâ€™s admissibility becomes crystal clear.
Note, however, that courts have only gone as far as fulfilling the element of sufficient consent, and the sufficient consent is just one of the 7 elements for gauging the validity of the conversation. Whether the other person in the conversation is Mel Gibson or not is beyond the scope of this article. However, the point is that a person can record a phone call without all-party consent in instances where either person is at risk of losing life and limb.
In this case, Oksana can record the phone call and submit it to court â€“ without facing legal sanctions for the apparently illegal act.