Covington, LA asked in Business Law for Louisiana

Q: If a phone conversation was recorded without your knowledge, though Legal, can it be made public or are there rules?

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1 Lawyer Answer
D. Alex Onstott
D. Alex Onstott
  • Licensed in Louisiana

A: There is no easy way to answer this question without knowing the content of the conversation and the method by which it was "made public". However, I can say that there are rules. There are rules based on the First Amendment; there are rules based on contract; there are rules that based on statute; and there are rules which may be implicated by circumstances or by the relationship between the parties.

The importance of free exchange of ideas and facts to our democracy is enshrined in the Constitution through the freedom of expression and freedom of the press. So the court, as a government body, will not prohibit speech unless it is needlessly harmful, like hate speech or defamation. So as it relates to this situation, the person cannot publicize the conversation if it contains private information about you (i.e. sexuality, health, or finance), unless there is a compelling reason why the public should know those facts, beyond "morbid and sensational prying." However, if the information informs the public in a way that could help them protect themselves, or make political decisions (such as voting) about the people involved, then the disclosure is likely to be protected. This is a complex analysis which should only be undertaken with the assistance of experienced counsel.

Additionally, certain situations may restrict a person's ability to publicize certain facts. Most obviously, if there is any sort of non-disclosure agreement. Non-disclosure agreements are powerful tools in these situations, but must be properly constructed to be enforceable, so do not assume that any NDA which might cover the conversation will protect you. Again, you should consult with an attorney to determine if an NDA exists, and if it does, whether or not it gives you any protection.

Other than express contractual arrangements, some information is protected by statute, such as health information, which is protected by HIPAA. There are many different laws which may apply to different categories of information, you would need to consult with an attorney to determine if there are any particular laws which apply to your case.

Finally, intellectual property and information which is privileged generally may not be publicized unless the information is crucial to prevent an imminent harm to the public. This encompasses information which is shared to a doctor, lawyer or similar professional, or information which could be considered a "trade secret". Sharing of privileged information may or may not create legal liability on the discloser, but it is often grounds for censure and punishment by the associations or agencies which regulate their profession. As with the other circumstances, I highly recommend that you speak with an attorney about your particular circumstances in order to get an accurate impression of your rights and exposure.

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