Depending on the type of news websites and television shows you frequent, it was difficult last week to escape the near-constant reporting surrounding the public release of telephone conversations between Mel Gibson and his ex-girlfriend (Howard Kurtz at the Washington Post has a detailed discussion of the matter (“Mel Gibson hits the Radar screen”), with particular focus on the behind-the-scenes maneuvering among various competing media outlets).
One peripheral issue which the Gibson drama raises is the question of when, if ever, an ostensibly “private” telephone conversation can be recorded.
In the United States, the answer to that question varies from state to state. So, for example, in California, it is illegal to record a telephone conversation unless all parties on the call have consented (subject to some exceptions where a crime is being discussed). The Citizen Media Law Project has a useful summary of the relevant federal and state laws in the United States. THR, Esq. also has a short piece on how some of those laws may impact on the Gibson matter.
In Canada, the answer is somewhat more straightforward: so long as one party to the conversation consents to the recording, there is no legal prohibition on recording a telephone call (see Section 184 of the Criminal Code). In other words, you can legally record a conversation which you are a part of, but you cannot legally record a conversation on which you are simply eavesdropping, unless one of the parties to the conversation is aware that you are recording and consents to it.
Michael Dew has written a comprehensive analysis of the issue: “Is it legal to record a private conversation? Wiretapping and the one party consent exception to the rule against interception”.
