Celebrity spats often induce eye-rolling among working professionals who care little about pop-star “he said, she said.” However, the recent feud between Kanye West and Kim Kardashian, on the one hand, and Taylor Swift on the other, highlights an important issue that business owners, employers, and any other California residents should know.
The feud goes like this: Kanye West called Taylor Swift to get her consent to use her name in song he was releasing. West and his wife, Kim Kardashian, are California residents so were presumably in California when Mr. West made the phone call to Ms. Swift, a New York resident. Kardashian, in true reality-television form, recorded a video of the phone call and posted it to the social networking site Snapchat. The video was posted ostensibly to prove that Swift did, in fact, consent to the lyrics about her. Swift had previously derided the song for referring to her as a b***h, and denied that she consented to such lyrics. The posted video shows West reading the proposed lyrics, but omits the line in which West refers to Swift as a b***h. After Kardashian posted the video, Swift made a statement indicating that the phone call was secretly recorded.
The California Invasion of Privacy Act, California Penal Code Section 632, dictates that all parties to a conversation or phone call must consent to the recording. In order to state a claim for violation of California’s Privacy Act, Plaintiff must prove three specific elements: (1) an electronic recording of (or eavesdropping on); (2) a confidential communication; and (3) all parties did not consent. The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto. It excludes, however, communications made in public gatherings, government proceedings open to the public, and any other circumstance in which the parties may reasonably expect that the communication may be overheard or recorded. The law provides for possible punishments of a $2,500 fine or up to a year in county jail per offense. The Act also provides for civil damages through a lawsuit—meaning Ms. Swift could file a lawsuit against the Wests for monetary damages.
For business owners, employers, or other parties, the celebrity feud is a cautionary tale. California heavily protects the privacy rights of its citizens, and the right to keep confidential conversations confidential is chief among them. Any party intending to record a telephonic conversation should advise all parties to the call that it is being recorded. This should be done at the outset of the call. This practice also applies to newer forms of communication like video conferencing (like Skype or Apple FaceTime). Owners who think they can escape liability for secret recordings if they don’t use them should think again. A person can be liable simply by making the recording.
With respect to face-to-face conversations, whether surreptitious recordings are legal depends primarily on the context of the conversation. A communication is confidential if a party that that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. Moreover, a conversation may be confidential if the circumstances reasonably indicate that any party to the communication desires it to be confined to the parties thereto. As a general rule, if the location of the conversation is open to the public it is less likely that the communication will be considered confidential.
Workplace conversations are sometimes confidential depending on the circumstances. The California Supreme Court stated the expectation of privacy against the recording of a conversation is “less likely to be deemed reasonable” when “the workplace is regularly open to entry of observation by the public…” See Sanders v. American Broadcasting Companies, Inc. (1999) 20 Cal.4th 907, 923. However, the secret recording of a meeting behind closed doors is not likely to be legal even if the conversation does not involve private affairs.
Given the situational nature of the law’s application, business owners and employers are wise to err on the side of caution. Transparency is perhaps the best practice to avoid liability under California’s Invasion of Privacy Act. Employers or businesses wishing to document conversations with customers or employers are well-advised to notify all parties to the communication that their conversation may be recorded. The same goes for employees seeking to document conversations with their employers.
Privacy issues in the Kanye West/Taylor Swift feud illustrate the importance of understanding the legal overlap between privacy and technology. While modern devices easily allow for the recording of nearly any conversation, the law prohibits such blatant espionage. The lesson is that even though we can, it is not always right that we should. Given the legal landscape in California, Kanye West may be hoping that Taylor Swift will just “Shake It Off!”
Michael Hellbusch is a litigator in TLD Law’s Irvine Office, where he excels in several areas of law including business litigation, intellectual property, cyber law, and privacy issues. His practice includes counseling clients on the security and privacy issues affecting their business and personal lives. He has presented on several cyber-related topics including advising small business and non-profits with respect to protection of customer records and personally identifiable information. He has also advised professional fiduciaries on the confluence of computer hacking laws, privacy laws, and probate laws, and contracts that affect access to digital assets. Mr. Hellbusch is a member of the Sedona Conference’s Working Group 11 on Data Security and Privacy Liability.