Can you record someone without their consent in public

As a Houston family law attorney who also practices some criminal defense case, one of the common questions I get is “can I record a conversation with someone if I don’t have their consent?” or “Can I videotape someone without their consent?” The quick answer is yes, in Texas you can, but here are more details you need to know:

One of the common misconceptions people have is because they do not have someone’s consent to record a conversation, that they cannot record them or that it would be illegal to record them. Some people think that while it may not be illegal, they wouldn’t be able to use the recording in court as evidence against the other person. This is not true, at least in Texas it is not.

You must be a party to the conversation to be able to record someone legally without their consent.

While some in some states it is illegal to record someone without their consent, in Texas you are allowed to record AND use the recording as evidence in court or criminal investigation, as long as you are a party to the conversation. This basically means that you CANNOT record (either by voice or video) other people’s conversations if you are not in that conversation. But if you are involved or part of the conversation or discussion, you are allowed to record the conversation without even having to notify the other person (or people if more than one person.)

Not only do you not need to get someone’s consent to record them, you don’t even have to notify them, as long as you are a party to the conversation.

So does this mean I can record someone without even telling them and still be able to use it as evidence against them in a potential lawsuit or investigation?

Yes, as stated above, you may record someone without their consent or knowledge AND be able to use it against them in court. In fact, this is one of the more useful ways to gain advantage in your case over the other party. For example, if the other person is talking to you in an aggressive or harsh tone, if they are hitting you, or saying something that is self-discriminating, recording them without notifying them can help bring justice, show the truth, and give you an advantage in court depending on the type of case you have. In family law cases, it can help you get a disproportionate share of assets (more on this to be discussed in other blogs), or help you get spousal support. In custody cases, it can help you in your battle to gain primary or sole custody and limit the other parent’s parental rights and visitations. In criminal cases, it can help exonerate criminal allegations against you, or if you are the victim, help arrest and convict the perpetrator.

Can camera footage be used in a divorce case?

Yes. If you are going through a divorce, or are in a shaky relationship in which you think a divorce may come soon, having security cameras in the house is a smart idea. I am in no way advocating purposely putting someone in a situation to hit the record button, but to assure you always stay alert and safe.

Contact Us

If you are looking for a family, personal injury, or criminal defense attorney or are simply interested in knowing more about recording laws, or any other legal questions, call or email me, Amir Tavakkoli, Houston attorney from the A.T. Law Office. My office phone number is 832-800-5590 and the email is . While we primarily practice in Harris and Montgomery County, we also travel to other counties such as Liberty County, Chambers County, Galveston County, Ford-Bend County, Waller County, Brazoria County, etc. Contact the A.T. Law Office by calling (832) 800-5590 for a free consultation.

Over the past few months, we have seen videos being posted on social media of physical altercations, poor service delivery and racial slurs, but the victims of the videos and audible recordings are usually unaware that they are being recorded. The recordings are conducted without their permission and then shared. But is someone allowed to record you without being granted permission and the share those recordings?

Audio recording

Audio recording includes the recording of conversations conducted over the phone, recording someone speaking to a room full of people, and recording a direct conversation, without the other party’s permission. Recording without consent is against the law, unless

• You are party to the communication;
• You have written permission of one of the parties to the conversation;
• The recording is in connection with the carrying on of business.

Direct video recording

This is the recording of a person with whom you are having a face-to-face conversation. The video taping of someone without their consent is permissible because you are party to the conversation, much like audio recordings. Recording an altercation between you and someone else, or recording an altercation at an airport is legal due to where the conversation is occurring – a public place.

Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) defines that a person is party to the conversation if they are in audible presence of the conversation. If you are in an altercation in a vicinity where other people can hear you, they are permitted to film because they are party to the altercation, therefore in direct communication with you.

Indirect video recording

Indirect communication is a much wider category, which includes data, speech and moving images. Skype conversations, although they appear to be face-to-face, are included as indirect communication because it is communication through an online telecommunications service. Thus, you would need to either be one of the parties in the engagement, or have been given consent from one of the parties to record the video/messages.

When is it illegal?

• If the recording is through an interceptive method such as “bugging” or a “tapping” a device;
• Hiding to spy on one of the parties for recording purposes, due to the parties being unaware of your presence;
• When you are in no way party to the conversation. Being party to the conversation is if you are the sender, the recipient, or any person included in the communication.

Exception: RICA permits recordings carried out by law enforcement personnel in certain circumstances.

References:

Kevin Illes, A. (2017). Legal implications of secret recording. [online] Moneyweb. Available at: https://www.moneyweb.co.za/archive/legal-implications-of-secret-recording/ [Accessed 15 Jun. 2017].

Writer, S. and Writer, S. (2017). When you can – and can’t – legally record someone in South Africa. [online] Businesstech.co.za. Available at: https://businesstech.co.za/news/general/167107/__trashed-65/ [Accessed 15 Jun. 2017].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)