A Massachusetts Superior Court judge has ruled that a group of Massachusetts plaintiffs can proceed with a wiretap suit against a Virginia defendant who secretly recorded his telephone calls with the plaintiffs without their permission. Virginia law allowed him to do so without their permission; however the Massachusetts Wiretap Act requires both parties to consent to voice recording.
The defense argued that two federal decisions should persuade the judge to rule that Virginia law controls. Those decisions held that secretly recording a phone conversation with a Massachusetts individual from a jurisdiction outside the state could not give rise to liability under the Act. However, Judge Dennis J. Curran, in a case of first impression, disagreed and held that §152 of the Second Restatement of Conflict of Laws compels a judge to apply the law of the state where the invasion of privacy occurred. Judge Curran noted that there were no appeals level cases that addressed the same situation. “When the intrusion involves an intrusion upon the plaintiff’s solitude, as the plaintiffs allege here, the place of invasion is the place where the plaintiff was at the time,” he wrote. “Because the plaintiffs allege they were in Massachusetts when [the defendant] recorded their calls, §152 favors the application of the Massachusetts Wiretap Act.”
The five plaintiffs were employees of Nuance Communication in Burlington. The defendant is an executive at Vianix located in Virginia. During the discovery phase of a civil case between the two companies over a license agreement, it was discovered that the defendant had secretly recorded five telephone conversations in 2007 and 2008. When the conversations occurred, the employee plaintiffs were in Massachusetts, the defendant was in Virginia.
Judge Curran wrote that “Although the Massachusetts-based plaintiffs were justified in expecting their calls would go unrecorded, the Virginia-based defendants likewise would have been warranted in believing that Virginia law would protect their right to record the calls.” However, Curran said Chapter 272 and §152 of the Restatement clearly require that all parties participating in a telephone call to Massachusetts must be notified that the conversation is being recorded. Any aggrieved party, he said, is entitled to recover actual and punitive damages as well as attorneys’ fees.