—Keeping it Confidential
“Under Massachusetts law, the video and audio portions of recording are treated differently. Video recording implicates M.G.L. c. 214, §1B, which states that ‘[a] person shall have a right against unreasonable, substantial or serious interference with his privacy.’ The language of the statute has been interpreted as requiring the Plaintiff to show that the invasion was both unreasonable and substantial or serious. Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 490 Mass. 514, 517-519, 567 N.E.2d 912 (1991); O’Connor v. Police Commissioner of Boston, 408 Mass. 324, 330, 557 N.E.2d 1146 (1990). Analysis typically focuses on whether or not an individual has a reasonable expectation of privacy at the time and place in question. A condominium is a private organization and may create and enforce its own rules regarding such matters as the recordings of meetings. In the absence of such guidance, although the organization is private, condominium meetings typically occur in public places or common areas. Therefore, the reasonable expectation of privacy may be questioned. However, a recording solely of video of a meeting is likely to possess little value absent audio.
“The response regarding audio recording is somewhat clearer. Audio recording implicates the Massachusetts Wiretapping Statute (M.G.L. c. 272, §99). The statute defines “oral communication” as ‘speech, except such speech as is transmitted over public air waves by radio or similar device.’ The Statute also prohibits the interception of oral communications. ‘Interception’ is defined as meaning ‘to secretly hear, secretly record, or aid another to secretly hear or record the contents of any wire or oral communication….’ However, it is important to note that our courts have defined “secretly” rather broadly. The United Stated First Circuit Court of Appeals held, in Gilday v. Dubois, 124 F.3d 277, 289 (1997) that a secretive interception occurs ‘unless both parties…had actual knowledge….’ Four years later, in Commonwealth v. Hyde, 434 Mass. 594, 599 (2001), the Massachusetts Supreme Judicial Court reiterated the point, holding that the Statute prohibits ‘secret’ recordings made without the target’s ‘permission or knowledge.’ Since permission or knowledge is required to record audio, it appears that audio recording of a condominium association meeting would require the participants’ consent. Practically speaking, absent consent, once provided with knowledge of the recording, parties could elect not to speak and meetings could be cancelled or rescheduled.
“From a practical perspective, there is also a question as to whether there is any benefit to attempting to record meetings absent consent. If there is no controversy associated with the meeting, then one’s presence and ability to take notes would appear sufficient for documenting the event. To the extent that there is controversy associated with the meeting, attempts to force recording based on knowledge without consent (if such attempts do not result in cancellation) would most likely serve to exacerbate the dispute between the feuding factions without even touching on the true substance of the matter.” n