A Brief Primer on Recording Conversations Statutes in Ohio
According to Ohio law, individuals who are parties to a conversation do not need the consent of other parties to record a conversation as long as the recording is not made for the purpose of committing a criminal or tortious act. Under Ohio law, a person who’s guilty of the crime of interception may be liable to the person who suffers injury by an injured person for the sum of $100 per violation of the law or actual damages sustained by the party and any punitive damages. Ohio Revised Code Section 2933.52. However, a person who reasonably believes that another is committing, may be committing, or has completed the commission of a criminal offense directed at that person or another and who records the offense may not be convicted of violation of interception of the communicative and equivalent statutes. Ohio Revised Code Section 2933.53.
However, if a person is recording an event that they are not a party to, Ohio Revised Code Section 2933 . 52 requires the consent of all parties to a conversation in order to be protected from liability. Thus, third-party recorders must get express permission from individuals to legally record conversations. Ohio law does not require any obligation on the part of a third-party that receives a recorded conversation to inform the original parties to the conversation that the conversation is being recorded or that the third-party will not divulge the contents of the recording to any other person.
Generally, federal law allows for the same protections as long as one party to a phone conversation consents to the recording. Title 18 U.S.C. section 2512(a) (1) & (2). If a person who is not a party to the original conversation records the telephone call, all parties to that conversation must consent to recording, otherwise federal prohibitions against recording may be applicable. If a conversation involves individuals in multiple states, both federal statutes and the laws of the subject states apply to the recording of the conversation.
What “One-Party” Consent to Recording of Conversations Means in Ohio
One-party consent is found in the Ohio statute and is applicable to all persons for by allowing a conversation to be recorded by at least one party to the conversation. Ohio R. C. 2933.52(A)(9) provides that the term "oral communications" means and includes any oral communication which any person in the State of Ohio has the right to "do." During a recording, if one party to the conversation is able to hear and understand what was said during the entire conversation, then one-party consent is said to have been given by that party to the conversation with the other party.
Even if the other party has no knowledge or awareness that the conversation is being recorded it does not matter. No expectation of privacy exists so long as one party to the conversation gives the consent for the recording of the conversation. This Police/Citizen interaction is considered public and all parties have the ability to hear and understand the conversation.
Penalties for Illegally Recording Calls and Conversations in Ohio
In Ohio, the unauthorized recording of an oral conversation can result in criminal and civil penalties. When charged as a crime, the defendant is placed in a difficult situation to prove there was no unlawful purpose in the recording, otherwise the law presumes the recording was for an unlawful purpose. If found guilty, such recording may be charged as a 1st degree misdemeanor, which carries a penalty of up to 1 year in prison, a fine of up to $1,000, or possibly both. When charged as a civil offense, the defendant may be liable to the plaintiff for compensatory damages of not less than $100 but not more than $5,000 per violation, and possibly punitive damages as well.
Business Considerations of Ohio’s Recording Laws
Businesses should consider how recording conversations with customers or employees will affect compliance with Ohio’s law. There are many considerations, including whether to record calls. For example, should a customer service group have notice on its business line(s) that calls may be monitored or recorded? It is possible that a company would choose to record all customer service calls, or a certain segment of them, for training purposes. But what if the customer service bank line is also used with business bank account holders? Consent issues may arise.
Also consider employee communications. Does an employee have to consent to any workplace monitoring, including recordings? Upon what basis is consent given? What if an employee is recorded? Is notice required?
Ohio’s recording law does not address these concerns. Regardless, consent-related issues are common for companies. However, Ohio-based employers should develop thoughtful policies that reflect their business and that distinguish lawful workplace practices from unlawful practices.
In Ohio, it’s not impossible for companies to record conversations where they lack consent, but prior to doing so it’s wise to carefully consider the situation with legal counsel.
Recording Conversations in Public Spaces versus Private Spaces in Ohio
Of course, where and with whom you are conversing makes a difference. Ohio doesn’t care much whether you are in an offsite meeting, at home or at work when it comes to consensual recordings. And you can record a conversation anywhere, even if it begins in a private setting, apparently even while the parties are in public – e.g. on public transportation – as long as you are part of the conversation.
Consider the example where two people get on a bus at the same stop. They don’t know each other, but happen to sit together. You could be seated nearby, and overhear snippets of their conversation. If they go on to discuss their marital problems, you would be able to record that conversation, so long as you did not collide with the bus driver who asked you to vacate your seat for the safety of the other riders.
Imagine another scenario: You walk down the street, past a couple engaged in a conversation outside of a restaurant. You are greeted by a person you used to know, and have an amicable chat with him. At some point during the discussion, you turn, and start to record what your friend says under the impression that he was discussing payment terms from a recent transaction . On leaving the venue, you stop the previous party and tell her about your conversation with the other woman. She calls the police, who arrest you and charge you with eavesdropping.
There appears to be a confrontational aspect surrounding the issue of so-called surreptitious recording. Consider the real-life case of an Ohio lawyer who was suspended in 2014 for recording 13 hours of his conversations with a co-worker. The lawyer had argued that Ohio Rule of Professional Conduct 8.4 allowed him to conduct such a recording, stating that: "It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer."
In finding that rule inapplicable to the lawyer’s conduct, the Supreme Court of Ohio noted that the precedent for the lawyer’s case under a sister state’s rules did not extend to Ohio law, and further stated: "We hold here that the fact that the lawyer and complainant both worked at the same firm does not give the lawyer the same right as the complainant’s employer to consent to the complainant’s recording of their conversations and that the lawyer’s secretly recording the complainant’s conversations was fundamentally dishonest."
Advances in Technology and the Recording of Conversations
The ubiquity of technology in the current-day world can sometimes raise questions about how the law applies to the use of technology. As it relates to this issue, different forms of technology are treated the same way. In other words, the ability to record conversations with smartphones, recording devices and apps are all treated equally under the law as applications of Section 2933.52. The important factor is whether the person who initiates the recording enjoys a right of privacy in the content of the recording. Individuals can waive this right of privacy by engaging in conversations with the knowledge that the conversations are being recorded. Section 2933.52 further provides that "any sound recording device that receives the direct or indirect transmission, including the reception of such transmission by means of wire or cable, of any electronic communication" must comply with federal law regarding interception of electronic communications, as well as comply with Ohio Revised Code Section 2933.52. Fryslân violators of these laws "shall be fined not more than three hundred dollars or imprisoned for not more than ninety days, or both."
Examples from Practice: How to Legally Record Conversations in Ohio
In one of Ohio’s earliest cases involving the state’s recording laws, the Supreme Court of Ohio ruled that interviewing two juveniles suspected of committing a crime was not permitted when they were suspected of being accomplices to a robbery. The Court ruled that the prosecution had obtained the audiotape of the juvenile interviews illegally, which therefore tainted the trial.
In State v. McCoy, the issue at hand was whether or not trial testimony by the accomplices that was based on law enforcement interviewing them over the course of one hour, and secretly recording their words and actions, was improper. The Court agreed with the defendant, ruling that it was improper to admit the statements of accomplices that were based on their illegal and secret pre-arrest interviews.
This seminal case in Ohio highlights the importance of obtaining consent from both parties prior to secretly recording a conversation. Despite the fact that it is legal to record a phone call in Ohio as long as at least one party knows about the existence of the recording, this case shows that there are times when not obtaining the consent of all parties can result in a conviction being thrown out on appeal or retrial.
The McCoy case also addresses the issue of what happens when recording equipment is left extending on one line of the conversation. To the Court, this meant that the recording of a conversation to which the defendant was not party could not be admitted as evidence:
"While this testimony could have been properly admitted had the equipment been placed in accordance with section 2933.51(B)(1) , we recognize that the trial court may only look to the contents of these tapes, if any, for the purpose of determining whether or not they were obtained through the commission of a criminal offense. Commonwealth v. Byrd, 418 Pa. Super. 136, 613 A.2d 1243 (1992). The decision in Byrd is of some help in determining whether the tapes were obtained illegally.
In Byrd, the police had utilized informants to testify as to a defendant’s admission of guilt. After the trial, it was learned that the police had further recorded part of a telephone conversation between the informants’ attorney and them. None of the participants in the call had consented to the recording. The Pennsylvania Superior Court determined that the tape, obtained in violation of Pennsylvania law, should not have been played to the jury as evidence of the defendant’s guilt. At least one of the charges against the defendant was reversed because of the tape.
Byrd recognizes that a determination of admissibility is controlled by a strict reading of the relevant statute. The Byrd court rejected the argument that the tape should have been admitted under the insistence that the tape was not obtained illegally, but was instead obtained as a result of inadvertence. This reasoning is also applicable here. The tapes were not obtained through inadvertence. The tapes were carefully made and were done so as a result of engaging in conduct which violated state law. The tapes themselves were not available until after McCoy had been convicted and sentenced. We find that McCoy’s due process rights were violated when these tapes were used as evidence against him at trial.