0

If I am party to a private conversation with a public figure, and that person either records (legally) the audio, a transcript, or if communication occurs via text, does that person have a legal right to publish the conversation if I explicitly state that I do not want it to be shared?

  • Why did you allow the recording if you weren't okay with others having access to the exact content of the conversation? – Nij Jul 27 at 2:51
  • 1
    @Nij "Why did you allow the recording if you weren't okay with others having access to the exact content of the conversation?" One possibility is to permit that other person to revisit and identify details that might go unnoticed at the time of having that conversation. Another motive is to preclude the risk that either party will subsequently distort (be it by honest mistake or on purpose) the statements made during the conversation. – Iñaki Viggers Jul 27 at 12:25
  • Please state which country's laws apply to your question – Shazamo Morebucks Jul 28 at 1:34
  • It was a hypothetical. I wan't thinking the recording was consensual, more like a single party consent situation. It wouldn't have been "allowed" per se, but still legally within their rights. – Mark Jul 28 at 3:08
  • 1
    If it is the U.S. the answer may vary by state. – George White Jul 28 at 3:30
0

It depends

In general, you have complete free reign to publish what you like notwithstanding the wishes of the other person.

Exceptions are:

  • you are in a fiduciary relationship e.g. lawyer-client, doctor-patient, banker-client etc. although such obligations are ‘one-way’ e.g. the lawyer can’t but the client can.

  • you are bound by a non-disclosure agreement

  • it’s confidential information given in confidence where you have a duty of confidence. Asking someone to keep it secret only creates the second of these, the first is a function of the information the third is a function of the relationship.

  • disclosure would be an offence e.g. national security, operational law enforcement, contempt etc.

  • the person had a “reasonable expectation of privacy in all the circumstances” although this generally applies to third parties who ‘overhear’ the conversation.

When people like politicians talk “off the record” to people like journalists silence is provided by professional ethics and risk of reputation rather than legal sanctions.

-4

does that person have a legal right to publish the conversation if I explicitly state that I do not want it to be shared?

No. The publisher would be in breach of the contract and/or breach of fiduciary duty.

Viewed as a contract, the exchange of considerations at issue was your consent to be recorded subject to your explicit request that the other person refrain from making the records publicly available (which I gather is what you mean by publish). Keep in mind, though, that a blanket prohibition to share the recording might be unenforceable under some circumstances or be stricken in court so as to facilitate fact-finding.

That being said, it would be difficult to determine the proper remedy for the violation other than injunctive relief ordering the withdrawal of the recording.

Likewise, see Coca-Cola Bottling Co. of Elizabethtown v. Coca-Cola Co., 696 F.Supp. 57, 75 (1988):

The dominant theme of the case law [...] is that fiduciary relationships arise where one party has the power and opportunity to take advantage of the other, because of that other's susceptibility or vulnerability.

(emphasis added)

The words in bold suggest that the disclosure must be unreasonable or disproportionate to the detriment of the person at jeopardy. In other words, pursuing a claim of breach of fiduciary duty despite the clear absence of harm (or likelihood thereof) could be considered frivolous.

  • 1
    There is nothing in the question to suggest that there was a contract involved. – Shazamo Morebucks Jul 28 at 1:33
  • @ShazamoMorebucks Your criticism is misplaced and ignores the notion of implicit contract or implied-in-fact contract, whereby the parties' conduct reasonably permits the inference that they engaged in a contractual relationship even if they do not call it that way. – Iñaki Viggers Jul 28 at 10:26
  • Sure, you dont need to call something a contract for it to be one. In fact, you can have a contract without saying or writing down anything. But nonetheless, there is nothing in the question to suggest that a legally enforceable contract (containing the elements of offer and acceptance, consideration, and intention to enter legal relations) is present – Shazamo Morebucks Jul 28 at 15:57
  • @ShazamoMorebucks An exchange of considerations forms a legally enforceable contract. The second paragraph in my answer identifies that consideration: A party's consent to record, and the counterparty's preservation of secrecy of the conversation being recorded. – Iñaki Viggers Jul 28 at 16:33
  • An exchange of consideration does not necessarily form a legally enforceable contract. Two other elements are always required: The first being an offer being made and the acceptance of the offer; the second being the intention of both parties to enter legal relations. I do not see any of these elements being present in the description of the scenario in the question. We should not look for answers where there are none. – Shazamo Morebucks Jul 28 at 16:55

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.