Right to Privacy/Recording Phone Conversations

Wisconsin has a statutory right of privacy.  And, you should know that if you invade someone’s privacy, in most cases truth is NOT a defense.  Wisconsin defines three types of invasion of privacy: first, intrusion upon the privacy of another in a highly offensive manner; second, misappropriation of a name, picture, or portrait for trade purposes; and third, publication of private matters in a highly offensive manner.    However, in this third point, a claim of invasion of privacy is not valid when there is a legitimate public interest in the matter involved.

If the information is a matter of public record, it is not an invasion of privacy to use it.

Wisconsin statutes permit lawsuits for damages and attorney fees for invasion of privacy.

You need to be particularly careful if you are going to record a phone conversation.  In Wisconsin, the law says there are two circumstances under which you can record a telephone conversation: first, when the person recording the conversation is a party to the communication; and second, when one of the parties to the communication has given prior consent to recording.  Violating this law carries up to a $10,000 fine and a possible prison term, or both.

As a reporter, you do not need to disclose that you are recording a conversation to which you are a party.  Wisconsin, like most states, is a “single-party consent” state for recording conversations.  Wisconsin law provides an exception to the wiretap statute.  The exception does not apply if you are acting on behalf of a law enforcement agency, which should obtain a warrant, nor does the exception apply if you’re going to use the recording for an unlawful purpose like extortion.

But not all states are “single-party consent” states.  Twelve states, including Illinois and Michigan, require the consent of BOTH parties before taping or airing a phone conversation, so you need to be aware that if you’re calling someone in either one of those states, you must get their consent right away before recording a conversation.

The FCC has what’s called the “Phone Rule” that says if you intend to broadcast a phone conversation or record a phone conversation for later broadcast, you have to inform the other party at the beginning of the call.

Mainly, this rule is enforced against talk show hosts who call people on the air, but it has been applied to all kinds of broadcasters including news reporters.  FCC rulings, though, have indicated that when a person calls into a talk show, it’s presumed they know their voice could be aired.

The Reporters Committee for Freedom of the Press maintains a website which can further help you understand the limits of consent when recording or airing phone conversations.

As a working broadcaster in Wisconsin, you should familiarize yourself with what you CAN do, what you SHOULD do, and what you MUST do, regarding the taping or airing of phone calls.

You CAN tape your own phone conversation in Wisconsin without the other party’s consent.  But you can’t put it on the air without getting their consent to do so.  You can air a phone conversation if you’re doing a talk show and someone calls into the show.

You SHOULD tell anybody you’re going to record right away that you intend to record the conversation, and that you may use it (or portions of it) on the air.

You MUST inform someone you call as a talk show host that you intend to put the conversation on the air.  As a reporter, you must inform anyone you call in any of the 12 states (above) including Illinois and Michigan which do NOT have “single-party consent” laws that you intend to record your conversation.