Privacy of Calls Affirmed

The California Supreme Court strengthened privacy protections Thursday by making it easier to successfully sue people who secretly tape others’ phone conversations.

The court decided unanimously that a conversation is confidential under state law if a party expects he or she is not being overheard or recorded. Those who secretly tape others can be liable for at least $5,000 in damages for each recording.

Thursday’s decision, which broadly defines what is confidential, was a defeat for the media, in particular broadcasters who have been sued for airing interviews with people who did not know they were being recorded. Media lawyers had filed a brief in the case urging the court to adopt a more narrow definition that would make it harder for plaintiffs to argue that remarks had been confidential.

The ruling stemmed from a Los Angeles case involving recordings a woman made of telephone calls between her now deceased husband and his son. The son, who charged his stepmother had tried to hasten his father’s death, now stands to collect as much as $120,000 for 24 phone conversations recorded by his stepmother.

California has prohibited private parties from recording telephone calls without consent from all participants--only if the calls included a “confidential communication.” Courts of appeal have disagreed over what constituted a confidential conversation.

In their brief to the court, lawyers for media outlets including the three major television networks argued that a broad definition of confidential communication would end the use of hidden microphone and camera reporting in California. The ruling also could make it more difficult for the print media to use material from recordings provided by third parties.

Jerry K. Staub, a lawyer who represented the son in Thursday’s case, said disputes over secret taping also arise frequently in the course of litigation, when one side tapes another’s damaging admissions without the party’s knowledge and consent.

“I think that is going to stop now, and that is a good thing,” Staub said.

If the court had ruled more narrowly, no conversation would be considered confidential unless one of the parties at the time had declared it to be so, Staub said.

The state high court ruled in a dispute between J. Michael Flanagan and his stepmother, Honorine T. Flanagan in Flanagan v. Flanagan, S085594.

Honorine married Michael’s father, John, in 1969, and John adopted her daughter. He also had two children, including Michael, from a previous marriage. When he married Honorine, John Flanagan had an estate worth about $22 million.

John was diagnosed as having prostate cancer in 1992, and his physician prescribed medicine to slow the spread of the disease. Honorine began giving her husband his monthly prescribed injections in 1993.

The court said that John changed his estate plan in 1995. Instead of leaving all his property to his wife, he planned to give his grandchildren from his first marriage an interest in his property.

Around that time, Honorine told her manicurist, Dale Denels, that she would pay someone to kill John, the court said. In September of that year, Honorine also told Denels that she was injecting John with water instead of his medicine.

The manicurist began taping her telephone calls with Honorine and told Michael that his father’s life was in danger, according to the court. The manicurist played Michael a tape of one of her conversations with his stepmother, and Michael played it for his father.

John moved out of his house and moved in with Michael. A physician later concluded that John had not been receiving his prescribed medication.

John changed his will to leave all his property to his two children from his first marriage. But John and Honorine reconciled in August 1996, and John again changed his will.

He died of cardiovascular disease in March 1997, and Honorine “ended up with basically everything,” said Staub, who represented Michael in the case.

Staub said the couple had lived for years in Beverly Hills, but eventually moved to the Palm Springs area. He said John, who had earned a fortune in the mortuary business, was in his 80s when he died, and Honorine was in her 60s at that time.

Honorine sued Michael and her manicurist for conspiracy, invasion of privacy and emotional distress. Michael filed a cross complaint, charging that Honorine had illegally taped all of his telephone conversations with his father after the couple reunited.

During a trial in Los Angeles, Honorine said she had installed a voice-activated recorder with her husband’s consent and listened to tapes of telephone calls daily.

Michael testified that his stepmother had forbidden her husband to speak with him and that he considered all his calls with his father to be confidential.

A jury awarded Michael $5,000 for each of 24 calls and $1.2 million in punitive damages. The trial judge eliminated the punitive damage award and reduced total compensation to $5,000.

An appeals court later decided that two of three conversations played to the jury were confidential, but that none of the other conversations were protected because Michael had presented no evidence of their content.

The appellate court, relying on an earlier decision, said that a conversation is confidential only if the parties had reason to expect that it would not later be divulged to someone else.

In rejecting that definition, the California Supreme Court noted that the Legislature has approved a law to protect cellular phone conversations from intentional eavesdropping or recording.

The Legislature chose to protect all phone conversations, not just those “where a party wanted to keep the content secret,” Justice Joyce Kennard wrote for the court.

“The Legislature’s ongoing concern is with eavesdropping or recording of conversations, not later dissemination,” Kennard wrote.

She said the state’s Privacy Act “protects against intentional, nonconsensual recording of telephone conversations, regardless of the content of the conversation or the type of telephone involved.”

Ed Green, who represented Honorine, said the Court of Appeal will now have to decide whether the telephone calls were confidential under the definition handed down Thursday.

He said there was testimony at the trial that Honorine, who never faced criminal charges, “did not attempt to kill” her husband and that she never withheld his medication.