Voice and Video Recordings under Georgia law

Per O.C.G.A. 16-11-66, you can record a telephone conversation in Georgia if you are a party to the conversation (on the phone). The recording will typically be admissible evidence at any hearing or trial. Therefore, if you and your spouse are having a telephone conversation, it is legal for you to record the conversation under Georgia law. The problem is one spouse can provoke a fight then turn on a recorder. Both spouses should be mindful that a recording could be running any time they are speaking on the phone. Insults and profanity can have a significant negative impact if played before a judge or jury.

You cannot, however, record a conversation if you are not a party, such as the situation where you record your spouse in a conversation with a boyfriend or girlfriend. See, Middleton v. Middleton, 259 Ga. 41, 376 S.E.2d 368 (1989). In this case, the husband secured a recording of the wife discussing her affair with her boyfriend and their plans to marry after the divorce. Because the husband was not a party to the conversation, the recording was inadmissible for direct evidence of the affair. However, there was no sanction to the husband for securing the information, and the court held open the question of whether the tape could have been used on cross examination for impeachment purposes.

There has been some confusion in Georgia law regarding whether a spouse can make a surreptitious video recording of another while in the marital residence. In 2013, the Supreme Court answered the question in the negative. See, Rutter v. Rutter, 294 Ga. 1 (2013) (The Supreme Court held there is no marital residence exception to the general rule found in O.C.G.A. section 16-11-62 that a party may not secretly observe, photograph or record the activities of another in a private place.)

The Court of Appeals had previously found an exception involving the "curtilage" of the marital residence (apparently meaning the marital residence and the immediate surrounding land), which created confusion until the Supreme Court ruled. It is noted, however, that the legislature could always insert this exception. But, for now, a spouse is safe from exposure to a surreptitiously recording while he or she is in the marital residence that could be used in court.

O.C.G.A. section 16-11-62 provides:

It shall be unlawful for:

• (1) Any person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place;
• (2) Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view; provided, however, that it shall not be unlawful:
  • (A) To use any device to observe, photograph, or record the activities of persons incarcerated in any jail, correctional institution, or any other facility in which persons who are charged with or who have been convicted of the commission of a crime are incarcerated, provided that such equipment shall not be used while the prisoner is discussing his or her case with his or her attorney; or
  • (B) For an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy;
• (3) Any person to go on or about the premises of another or any private place, except as otherwise provided by law, for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities;
• (4) Any person intentionally and secretly to intercept by the use of any device, instrument, or apparatus the contents of a message sent by telephone, telegraph, letter, or by any other means of private communication;
• (5) Any person to divulge to any unauthorized person or authority the content or substance of any private message intercepted lawfully in the manner provided for in Code Section 16-11-65;
• (6) Any person to sell, give, or distribute, without legal authority, to any person or entity any photograph, videotape, or record, or copies thereof, of the activities of another which occur in any private place and out of public view without the consent of all persons observed; or
• (7) Any person to commit any other acts of a nature similar to those set out in paragraphs (1) through (6) of this Code section which invade the privacy of another.

Ga. Code Ann. 16-11-62 (West)

If you or your private investigator obtained information in violation of this section, it will be, at a minimum, inadmissible. There may also be criminal sanctions.