SAN FRANCISCO (Legal Newsline) - Yelp can be sued under a California privacy law for making “one-way” recordings of sales calls in which only the voices of its own employees were saved, an appeals court has ruled.
Attorney Eric Gruber sued the online review site in 2016 after receiving a dozen calls from sales representatives, including a friend, with whom he claims he “joked, discussed private topics including beer drinking, and used profanity or other colorful language.” Discovery revealed the sales reps recorded their side of several of the conversations although there were no two-way recordings featuring Gruber’s voice.
A trial court granted summary judgment in 2018, after finding there was no question Gruber’s voice had been recorded and one-way recordings weren’t covered under CIPA. The court dismissed Gruber’s wiretapping claims and also found Yelp used voice over internet protocol technology, which wasn’t specifically named in the California privacy statute.
The California Invasion of Privacy Act, passed in 1967, prohibits recording any “confidential communication” -- defined as a communication any party would want confined to the speakers – without the consent of everyone involved. Section 632.7 of the law imposes civil liability on anyone who records telephone conversations, regardless of whether they are confidential. Gruber argued the law applies to one-sided conversations because the sales reps repeated what he said, essentially restating his side of the call.
Yelp argued the law doesn’t apply to one-way recordings, citing the reasoning of the California Supreme Court, which has interpreted CIPA to allow people to restate what was said during a private conversation even if they can’t record it on an electronic device. The state high court said CIPA protects people against their conversation being “transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large.”
The Court of Appeal for the First Appellate District called it a “false dichotomy” to compare Yelp’s one-sided recordings with a simple retelling of what was said in a private conversation, however. Recording technology, as the California Supreme Court ruled, is more intrusive.
“Any contrary interpretation would permit a business to maintain a policy and practice of recording one side of every telephone conversation with its clients without first obtaining the consent of all parties,” the appeals court ruled. “This, in turn, would erode the very privacy interest that the act was enacted to protect.”
Privacy groups urged the court to rule in Gruber’s favor. The Reporters Committee for Freedom of the Press and 17 media organizations urged the court to narrowly interpret CIPA, however, so as to protect their right to engage in “notetaking” without consent. Written notes aren’t covered by CIPA, the appeals court said, and if the reporters really meant using electronic means, that question wasn’t before the court.