California Supreme Court Overturns Call Recording Ruling

The California Supreme Court yesterday overturned a lower court’s ruling, determining that the parties and nonparties must get consent from everyone on a wireless or cellular phone call before making a recording.

A copy of the ruling in the case of Smith v. LoanMe can be accessed by clicking here.

The plaintiff sued after answering a call from the defendant on a cordless phone. The call was for the plaintiff’s wife, who had taken out a loan with the defendant. The plaintiff told the representative from the defendant on the phone that his wife was not home. The call lasted all of 18 seconds. During the call, which was recorded by the defendant, a “beep” tone sounded and the representative did not tell the plaintiff that the call was being recorded.

The plaintiff filed a class-action suit, arguing that the defendant needed to notify the people it was calling that the calls were being recorded under California law. A trial court determined that by continuing to speak with the representative after hearing the beep tone that the plaintiff had consented to having the call recorded. But the state Appeals Court saw it differently, ruling that Section 632.7 of the California Penal Code – the Invasion of Privacy Act — prohibits only third party eavesdroppers from intentionally recording calls involving at least one cellular or wireless telephone.

In its ruling, the state Supreme Court decided that Section 632.7 “applies to the intentional recording of a covered communication regardless of whether the recording is performed by a party to the communication, or by a nonparty.”

Among the arguments put forth by the defendant was that the fact that had the plaintiff answered the defendant’s call on a landline phone, this case would never have been filed. Such “happenstance” the defendant argued, is “absurd.”

All of the issues associated with attempting to comply with Section 632.7 can be avoided, the Supreme Court wrote, by “taking reasonable precautions,” such as getting the consent to record that is required under the statute.

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