In California consent of all parties to a confidential communication is required before recording is lawful. See, California Penal Code, Sections 630 et seq.
What is a "Confidential Communication"?
A confidential communication is a conversation where one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See, Flanagan v. Flanagan (2002) 27 Cal.4th 766.
Therefore, telephone conversations would almost always be considered a confidential communication. Conversations behind closed doors would also almost always be considered a confidential communication.
What about a Conversation in a Public or Semi-Public Place?
Even conversations that take place in a public or semi-public place can be considered a confidential communication. The underlying facts and circumstances would dictate whether or not a conversation would be deemed confidential or private.
For example, a business lunch meeting at a restaurant where you are seated at the crowded patio within close proximity to other tables with two strangers and the conversation continues while waiters stand by the table - this is probably not a confidential communication. See, Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066.
The best practice, therefore, is to always obtain consent from all parties when recording a conversation. The penalties for an illegal recording can be quite severe.
If convicted, a first offense would result in a fine not exceeding $2,500 or imprisonment in county jail not exceeding one year. See, California Penal Code, Sections 632, 632.5, 632.6, 632.7, 634, 635.
Subsequent convictions would result in a fine not exceeding $10,000 and/or imprisonment in county or state jail not exceeding one year. See, California Penal Code, Sections 632, 632.5, 632.6, 632.7, 634, 635.
A party to the confidential communication could sue for civil penalties where there were a violation of California's wiretapping laws. See, California Penal Code, Section 637.2.
These civil penalities could include the greater of:
(A) $5,000; OR
(B) 3 times the actual damages, if any, sustained by plaintiff.
These civil penalties are true of each violation. Thus, 5 illegal recordings would result in a minimum of $25,000 in damages. The jury at the trial court level in Flanagan v. Flanagan referenced above found 24 illegally recorded telephone calls and awarded $5,000 in damages for each call. The total damages awarded was $120,000.
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