There have been many invasion of privacy cases in California that have received significant media attention. A lot of news outlets cover the event using private and graphic pictures that were posted on a social media platform without consent from either party involved. In some situations, criminal or civil action will soon follow.
For example, there have been cases where reality TV stars have posted nude pictures of an ex-girlfriend after an ugly ending of the relationship. Also, there was a case of revenge porn where the defendant was sentenced to prison for extorting women for payment to get their nude images removed from his website.
Anyone accused of eavesdropping could be face a civil lawsuit from the alleged victim. For example, California Penal Code 637.2 describes that an eavesdropping victim can pursue a civil suit for damages against someone who eavesdropped on them.
The victim who pursues a claim of economic damages that was caused eavesdropping could sue for up to three times the amount of damages suffered, or $5,000, whichever is greater. It should be noted that even in a situation where there were no economic damages, a victim is still allowed to sue the other person for up to $5,000.
To give readers a better understanding of the invasion of privacy laws, our Los Angeles criminal defense attorneys are providing an overview below.
Are There Any Exceptions to Private Recordings?
There are some exceptions to private recordings that can be distributed without consent of both parties. We have received calls from civil lawyers seeking information on whether their clients' who obtained secret recording can be used in a lawsuit.
It should be noted that admissibility in court will depend on if the recordings were lawful. California Penal Code 633.5 PC says that it is legal for a victim of a crime to record someone who is making threats of harm. making threats of harm. Under PC 633.5, it provides a list of crimes, including kidnapping, extortion, bribery, human trafficking, and any felony involving violence against them.
For example, if one spouse in a divorce is making threats of physical harm, the secret recording has a good chance of being admitted in court during divorce proceedings.
However, let's say one spouse in the divorce make statements about hiding their assets from the court to pay less child support, but there are no threats of physical violence, then the secret recording will probably not qualify for an exception.
Therefore, the invasion of privacy laws seems clear that you should not record or distribute a private audio unless there is some risk of physical harm. If you distribute private information and a police report was filed, it is possible to face criminal prosecution.
Definition of California Penal Code 632 – Eavesdropping
In 1967, California passed the “Invasion of privacy Act” that provides criminal penalties to deter people from invading the privacy of another person. There are certain types of eavesdropping that are a crime.
California Penal Code 632 PC defines the crime of eavesdropping as:
Anyone who, intentionally without the consent of all parties in a confidential communication, uses an electronic amplifying or recording device to eavesdrop or record the communication, whether the communication is carried on by means of a telephone, or other device, shall be fined up to $2,500 per violation, or sentenced to jail for up to one year.
This definition means it's a crime to use an electronic device to monitor or record a private conservation. However, in order for the prosecutor to obtain a conviction for PC 632 eavesdropping, they must be able to prove all the elements of the crime listed in CALCRIM 1809 Jury Instructions:
- The act of recording was intentional
- The act didn't have permission from one of the parties
- The conservation was confidential
- The act involved using an electronic device
A confidential communication is described as any communication that was carried out in circumstances that reasonably indicated someone involved had the desire to keep it confined between the parties.
It does not include any communication made in a public gathering, like any type of proceeding that was open to the public or in a circumstance where the parties involved should have reasonably expected the conservation could be overheard or recorded.
Eavesdropping Exceptions for Law Enforcement
As noted, there are exceptions that make it legal to record a private conservation. The Invasion of Privacy Act made an eavesdropping exception for law enforcement officers.
For example, it's legal for law enforcement to record a conservation without knowledge of the parties if it's associated with their duty in a criminal investigation. Evidence obtain during the recording is admissible in court.
Also, there is an exception where police can authorize a witness in a criminal case to privately record the conservation with an alleged suspect, even when they are not aware of the recording.
For instance, let's say a suspect is under investigation for a sexual related crime against a minor. Law enforcement can give a minor authorization to call the suspect in order to elicit incriminating statements. Again, any evidence obtained in this manner is admissible in court and will often result in a conviction.
Eavesdropping Exceptions for Private Citizens
As noted above, California Penal Code 633.5 describes that private citizens can be exempted from the eavesdropping laws as long as the recording of private conservations are to obtain evidence of certain crimes.
This exemption would apply if the private citizen recording is a party to the conservation and their intent is to gather evidence they reasonable believe is related to the other party committing specific crimes, including:
In these type of situations, a private citizen is allowed to legally record the call. It can be used as evidence in court to the prosecution a suspect for one of the crimes listed above.
Contact Our Firm for Help
The Invasion of Privacy and eavesdropping laws under California Penal Code 632 are complex and often confusing for many people. It should be noted that in order to avoid potential criminal or civil penalties, you shouldn't normally privately record a conservation with someone else without letting them know the call is being recorded.
Also, you should never make any incriminating statements to a crime because you don't know whether the other party on the call has been given permission to record the call without your consent.
If you were accused of violating California's invasion of privacy laws, contact us to review the details and options.
Cron, Israels & Stark is a criminal defense law firm with a team of highly experienced attorneys. We are located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office located at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. .