Advocacy Ethics PRSA News

To Record or Not to Record, That is a Legal Question

When a PR professional is considering whether or not to record a conversation, it’s critically important to know you are within the law. This is not as easy as it appears as different states have quite different approaches to what constitutes illegal behavior and what is necessary to do to make the recording legal.

What is legally accepted in one state may be contrary to the laws in another state. And when different participants to a conference call, media interview or any other audio communications are in different states, the thorny issue of what is and is not a legally permissible recording becomes particularly complex.

Further complicating matters is the rising use of “gotcha” journalism to expose CEOs, activists and other leaders in supposedly nefarious acts or remarks. (See: NRP’s recent fund-raising debacle at the hands of James O’Keefe’s surreptitiously-placed recorder.)

Professional Standards Advisory PS-18 is designed to help PR practitioners better understand this confusing matter. It offers best practices to help PR pros avoid committing an illegal act that could destroy a career or open up a civil claim for damages.

Recording a conversation can be a useful tool in ensuring interviews are accurately rendered and individuals aren’t relying on their respective memories or notes to reproduce what was said. But there is a very important caveat that must keep in mind:

It is almost always illegal to record a conversation to which you are not participating, do not have consent from at least one of the parties involved to make a recording and could not naturally overhear the conversation.

Hypothetical examples of improper practice include:

  • You host a briefing with a reporter and the CEO of your client company. With the reporter located in California and the CEO calling from Washington, D.C., you record the conversation without informing either party of your intentions.
  • You have a video camera pointed away from the activity, but recording of ambient audio continues, unknown to the parties having the conversation.
  • You record a conversation between a reporter and an executive in Illinois, informing neither of your intentions to record the dialogue.

To sustain ethical and legal practices concerning the recordings of media interviews and other conversations, PRSA recommends the following best practices:

  • Always inform all parties participating in the dialogue that a recording of the conversation is intended, allowing anyone who disapproves to refrain from participating.
  • After informing all parties that the conversation is being recorded, start the recording and repeat that the call is being recorded to ensure a record of the notification is captured.
  • Consult a local attorney familiar with state statutes if you are uncertain about the laws that apply to a planned recording.

Knowledge of what is legally permissible is incumbent upon the person making the recording. PSA-18 provides examples of best practices and illegal activities to avoid. Recording can be done within the laws of the various states involved in the conversation but it’s the responsibility of the recorder to know they are in compliance with all the laws that affect the recording. PSA-18 provides the guidance to help you determine what is permissible and to proceed with confidence.

Perhaps the best piece of advice may be a bit of common sense: if in doubt, ask before you record or go into an interview. In today’s 24/7 media environment, we’re always “on the record.”

I invite you to review PRSA’s new guidelines on the recording of media and client interviews for further insight and best practices. And please weigh in with your thoughts in the comments below.

Patrick McLaughlin, APR, is a member of the PRSA Board of Ethics and Professional Standards (BEPS), and was lead author of PRSA’s Professional Standards Advisory PS-18: Illegal Recordings.

Related: PRSA Advises on Ethical Best Practices for Recording Media Interviews

2 Comments

  • If my neighbour (a restaurant) and their clientele are making noise (including mobile phone conversations)  that I can naturally overhear, can I record from my property their conversation.  The purpose is to demonstrate that there noise is disturbing my right to enjoy my home.  This may include half of a mobile phone conversation as they stand either in or adjacent to my property.

    It it is meant to be private, surely I should not have to listen to it?

    And once it is recorded as I naturally overheard it, can I post it to youtube to finally get the message across that they are disturbing the peace.

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