California privacy act interpretation could make common newsgathering practice unlawful

Update (Oct. 8, 2020): On Oct. 7, 2020, the California Court of Appeal, First Appellate District, reversed the trial court’s grant of Yelp’s motion for summary judgment. The court addressed the media coalition’s friend-of-the-court brief in a footnote. It states that Sections 632 and 632.7 of the California Invasion of Privacy Act apply only to recordings made with “electronic devices” and so does not “interfere with a journalist’s right to take handwritten notes.” (The court does not address whether note taking on a computer would be covered by the statute.) It also states: “[T]o the extent that media amici are referring in their brief to ‘note taking’ by journalists by way of a recording device, the legality of this sort of journalistic method under CIPA is not an issue presently before this court. Accordingly, we address it no further.”

The California court of appeal is considering an expansive interpretation of state privacy law — in a pending lawsuit pending involving Yelp — that would make it unlawful to take notes during telephone conversations. The Reporters Committee for Freedom of the Press and a coalition of 17 media organizations are urging the court to reject the argument that the California Invasion of Privacy Act prevents note taking.

In the case, plaintiff Eric Gruber alleges that Yelp violated the CIPA by recording conversations between him and Yelp employees. Yelp argues that it only made “one-way” recordings in which only the Yelp employee’s voice was recorded.

The district court found that Yelp did not violate CIPA, but Gruber appealed, calling for a more “expansive” reading of what qualifies as a recording under the law that would include “all simultaneously-created records” as long as they are “registered in reproducible form,” whether that be audio, written, photographic or another form of recording.

In a friend-of-the-court brief filed July 10, Reporters Committee attorneys argue, along with 17 media organizations, that this expansive interpretation of CIPA could potentially make journalists responsible for damages or criminalize those who take notes — either by hand or by computer — during conversations and consequently, criminalize the common journalistic practice of notetaking. Note taking should not be considered recording, “even if done without the consent of all parties to the communication.”

Journalists regularly take notes during interviews and phone conversations to ensure accuracy in their reporting and maintain a record that can help them protect against defamation liability. According to the brief, when a source is uncomfortable being audio recorded, “a journalist’s simultaneous notes can provide the only evidence that a story reflected what was said in an interview.”

Such an expansive reading of CIPA would risk criminalizing “an everyday activity in newsrooms across California,” the brief argues.

In its brief, Yelp argues that this expansive interpretation of the law “does not follow any court’s interpretation of CIPA or other similar statutes across the country.” The media coalition is urging the court to make clear that note taking, even without the consent of all parties involved, does not violate CIPA.

Read the Reporters Committee’s brief.