BY AMANDA CICCATELLI From Inside Counsel

Can Taylor Swift sue Kanye West for Kim Kardashian’s recorded phone call?

On Sunday, Kim Kardashian West posted a recording of a conversation on Snapchat between her husband Kanye West and Taylor Swift that was allegedly recorded without Swift’s consent — a potential violation of California state law requiring both parties to consent to the recording of communications.

Technology no longer places reasonable limits on our ability to perform these acts of documentation, according to Viktor Mayer-Schönberger’s book Delete: The Virtue of Forgetting in the Digital Age.

The ephemeral nature of Snapchats may reduce our perception of the harm of sharing an illicit photograph, but it is actually the taking of the photograph — not the dissemination — that violates privacy law.

So, does Swift have grounds to sue the Kardashian West at this point? What would it take for Taylor to win? Hanley Chew, Of Counsel, Litigation, Fenwick & West, sat down with Inside Counsel to discuss the legal implications of Kim’s recording.

According to Chew, recording a telephone conversation may subject a party to criminal and civil liability under California law. Section 632(a) of the California Penal Code, which was enacted as part of the California Invasion of Privacy Act (CIPA), makes the recording of confidential telephone conversations illegal, unless all parties to the conversation consent. Section 632(a) applies only to confidential communications.

And, Section 632.7 of the California Penal Code, which was also enacted as part of CIPA, makes the intentional recording of communications involving a cellphone illegal, unless all parties consent. There is no requirement that the communication be confidential under section 632.7.

CIPA only applies if part of the telephone conversation occurred in California. Violations of CIPA can lead to a fine of up to $2,500 and/or imprisonment up to a year.

“Whether Kim Kardashian and Kayne West are liable under CIPA for recording West’s telephone conversation with Taylor Swift is dependent on several factors,” Chew said. “Where West and Swift were located when the telephone conversation took place. If either West or Swift were in California, then CIPA applies and Kardashian and West face potential liability. If neither of them were in California, then we would have to look at the law of the states that they were in when their telephone conversation took place.”

In addition, liability could depend on whether those states require either only one party or all the parties to a conversation consent to the recording. Assuming that CIPA applies, another factor is whether Swift had a reasonable expectation that her telephone conversation with West was confidential.

Telephone conversations are generally considered confidential communications. However, there may be circumstances, like a conversation being broadcast on speaker, which may make it unreasonable to have an expectation of privacy in the conversation.

“Recording and publicly disclosing private telephone conversations may also subject parties to potential civil liability under the two invasion of privacy torts,” Chew explained.

First, is the public disclosure of private facts tort, which requires the public disclosure of a private fact that would be offensive and objectionable to a reasonable person and that is not a legitimate public concern or interest. Second, is the false light tort, which requires that a defendant’s dissemination of information portray the plaintiff in a false and derogatory light that would be offensive to a reasonable person.

“Swift is unlikely to succeed with a public disclosure of private facts claim,” he said. “It is doubtful that she would be able to establish that the recording and public disclosure of her telephone conversation was highly offensive to a reasonable person or that it did not constitute a matter of public concern or interest.”

Some examples of offensive public disclosures under this tort include publication of an individual’s sexual orientation in a newspaper, and the dissemination over the Internet of photographs of the decapitated victim of an automobile accident.

“The recording and public disclosure of Swift’s telephone conversation do not rise to this level,” he explained. “So, courts have found that a legitimate public interest exists in many of the events in the private lives of prominent figures, such as entertainers, politicians, and professional athletes.”

For example, the relationships and criminal acts of celebrities are considered newsworthy and matters of public concern. As celebrities, the conversation between Swift and West and its subject matter would likely be considered a matter of legitimate public interest.

Swift may have more success with a false light claim, according to Chew. He added, “She would have to show that the recording and public disclosure of her telephone conversation create a false impression of her and this impression is highly offensive to a reasonable person.”

Some examples of offensive false impressions include the publication of a photograph of a couple without their knowledge alongside an article about love at first sight being no more than sexual attraction that would lead to divorce, and the publication of a photograph of a Little League team with an article about its coach being convicted of child molestation.

Here, Swift could argue that the recording of her phone conversation creates the false impression that she knew how she was going to be portrayed in the lyrics of West’s song and was happy with that characterization.

IMAGE:  Taylor Swift, left, arriving at the 2016 Grammy Awards. Kanye West and Kim Kardashian, right, arriving at the 2015 MTV Video Music Awards. (Photos by Jordan Strauss/Invision/AP)

For more on this story go to: http://www.insidecounsel.com/2016/07/22/kim-kardashian-vs-taylor-swift-the-legal-implicati?slreturn=1470068734