The California Supreme Court has reversed an appellate court’s decision that would have allowed two parties on a phone call to record each other without consent.
If the Fourth Appellate District’s decision had been upheld, only third parties or eavesdroppers would be accountable for secret recordings, according to media reports.
“The latest type of call recording class actions tend to be involving outgoing calls as this one did where you might not have a recorded message that says you're being recorded so there was some uncertainty for a little while with the appeals decision as to whether those kinds of class actions would be maintainable,” said attorney Zoe Wilhelm, a partner with Faegre Drinker law firm.
On April 1, the California Supreme Court confirmed that recording rules have returned to what they were before the Fourth Appellate Court issued its ruling in 2019.
“We hold that Section 632.7 applies to parties as well as nonparties,” wrote Chief Justice Cantil-Sakauye in the decision. “This interpretation reflects the most sensible reading of the statutory text, is consistent with the relevant legislative history, and advances the Legislature’s apparent intent by protecting privacy in covered communications to a greater degree than the Court of Appeal’s construction would.”
The reversal was based on a lawsuit filed in 2016 by Jeremiah Smith against LoanMe, alleging that the recording of his conversation with the company violated Section 632.7 of the California penal code.
“The statute is very similar to the federal Wiretap Act,” Wilhelm told the Southern California Record. “As with the federal Wiretap Act, there is evidentiary protection incorporated into the statute. The major difference is just that in California the consent of both parties to the call is necessary prior to recording rather than just one party to the call.”
The federal Wiretap Act attaches civil and criminal penalties when a person uses a device to disclose or use a communication’s content.
“Had the court of appeal decision been allowed to stand, there may have been fewer class actions going forward against companies,” Wilhelm said. “As a class action defense lawyer, we don't typically see any class actions that involve landlines on both sides because when you need to prove that there is a reasonable expectation of confidentiality, it's very hard to certify a class.”
Section 632 only prohibits recording a call if the call is confidential and takes place on a landline, according to Wilhelm
For those who don’t want a telephone conversation recorded and used against them, Wilhelm advises stating “I don't want to be recorded” at the start of the call.
“The consent element is essential,” she said. “If both parties are on landlines, there is some open question as to whether either party has to obtain consent but practically speaking you don't necessarily know if somebody is on a landline or not. So, from a compliance standpoint, you should request consent if you intend to record a call.”