By: Sarah Bennett
While I have been known to waste my time with even some of Bravo’s most questionable programming (I’m looking at you, Relationshep), on Monday nights, I really live for Vanderpump Rules (“VPR” for all the insiders). Last week, Bravo aired the 101st episode of VPR: “Sex, Lies and Audiotape.” The gist of the episode was that our anti-hero, Jax, recently confessed to his girlfriend, Brittany, that he slept with Faith, another co-worker. While Jax contends that his episode of unfaithfulness (pun intended) was a one-time slip-up and that he truly loves Brittany, Faith claims otherwise. In fact, Faith shares with the rest of their friends that she possesses an audio recording of Jax stating that he’s no longer sexually attracted to Brittany and that he never intends to marry her (Jax and Brittany’s path towards the altar – and Brittany’s desire to expedite that journey – is a major topic on both VPR and its spin-off, Vanderpump Rules: Jax and Brittany Take Kentucky, which I have also shamelessly watched).
If you are still reading this post, you may be wondering what my personal interest in the questionably authentic relationships of servers at a Southern Californian restaurant has to do with family law in North Carolina. The answer: wiretapping laws! Just about weekly, Chris or I consult with a client who wants to know whether a secret recording he or she made of their spouse (or some other individual) can be used in court. As with many questions about family law, the answer is, “it depends.”
For purposes of state wiretapping laws, North Carolina is a one-party consent state. What that means, generally, is that it does not violate state law for you to record an in-person or telephone conversation between yourself and another person (so long as everybody is in North Carolina when the recording is made). On the other hand, it would violate our state’s laws for you to secretly record a conversation between your spouse and a third person when neither your spouse nor that third person know that they are being recorded. So let’s think about it in terms of VPR: Faith, unbeknownst to Jax, recorded a private conversation between Jax and herself. If this had all occurred in North Carolina, Faith would face no state criminal or civil liability and the court would likely admit the recording as evidence if Faith and Jax were later involved in a lawsuit. However, let’s imagine if the situation were a little different; for instance, let’s say that Brittany, suspicious that Jax may be cheating, wanted to know what Faith and Jax were saying and doing behind Brittany’s back. So, Brittany decided to “bug” Jax for the purpose of secretly recording Faith and Jax’s private conversations without either Jax or Faith knowing about the recording or giving Brittany permission to do so. If all of these actions occurred in North Carolina, this would be problematic for Brittany – not only would Brittany’s recording be inadmissible in any kind of legal proceeding, but she could also be facing civil liability or even felony wiretapping charges.
This “bugging” hypothetical is akin to when a person secretly records their spouse’s conversation with a possible paramour or a child. Absent one of the recorded parties giving their consent to the recording, generally, this is not permissible in North Carolina (there is, however, a good faith exception known as vicarious consent in certain circumstances when one is recording a child). While I am not admitted to practice law in California, a cursory Google searched revealed that California, where VPR is filmed, is a two-party consent state. That means that in California and any of the other eleven two-party consent states, a person who wants to record a conversation needs the permission of all parties to the conversation prior to making the recording. I would imagine this could potentially mean legal trouble for Faith if she did not let Jax know that she was recording him; this might also provide some insight into why Bravo opted not to air the contents of the actual recording, but instead filmed the Bravolebrities’ reactions to hearing the recording.
Returning to the law in our state, there are some additional exceptions to North Carolina wiretapping laws. For instance, cameras can be used in public places (such as streets, hotel lobbies, parks, etc.) to record the area. This is not considered illegal wiretapping because an individual has no reasonable expectation of privacy in these public areas. Obviously, this does not apply to “upskirt” cameras or other criminal recording methods – but there can be another blog post (and probably another reality TV show) in which we can examine those issues.
Outside of the family law context, there are additional, legitimate scenarios where one may want to record a conversation, such as a performance review at work or an encounter with a police officer. Clearly, the laws in North Carolina regarding wiretapping are complicated. I strongly suggest that anybody thinking of making an audio or video recording read the governing North Carolina law (N.C.G.S. § 15A-287) and consult an experienced attorney for advice on the issue. In the meantime, happy reality television-watching!