Imagine that you’re meeting with your boss. You have a forgetful memory, so you record your conversation with them for later reference. A few days later, your boss finds out about it and gets upset that you recorded them without their consent.
What do you do in this situation and what are your rights?
It’s complicated.
What are Delaware’s recording laws?
Delaware’s recording laws are murky.
According to state law, Delaware is a “one-party consent state,” meaning that only one person in a conversation needs to agree for it to be recorded, as long as it is not recorded with “a criminal or tortious intent.” However, according to state privacy laws, it is illegal to intercept “private” conversations without the consent of all parties involved.
What exactly constitutes a private conversation? The Delaware Code doesn’t explicitly define what it means. But according to the Reporters Committee for Freedom of the Press, a legal service for journalists, it is typically up to the courts to determine whether there was a “reasonable expectation of privacy” in a conversation. Factoring into that expectation includes where a conversation takes place, what was discussed, and whether others could hear.
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The RCFP states that in-person conversations in public places, where parties speak loudly, have “no reasonable expectation of privacy.” Meanwhile, conversations in a person’s home “have the greatest expectation of privacy.”
In other words, if you recorded your boss at their house or in a closed room, that’s probably not allowed. However, if you were talking to them in public, where bystanders can hear, that’s another matter.
What if I’m at home?
What if someone is recording you while you’re at home?
The RCFP considers a person’s home to have “special significance,” and for good reasons. There’s a whole separate set of laws regarding violations in private places, which are more stringent than broad interception laws and are generally applicable to homes.
On private property, Delaware state laws prohibit trespassing with the intention of eavesdropping, installing photographic or recording devices without the consent of those on the property, or filming or photographing someone while they are getting dressed or undressed.
More: UD student faces felonies after secretly filming sex, sharing film with frat. Know the law
So if someone comes onto your backyard to record you, they’ll need your permission first.
Yanyan Li is a news intern at Delaware Online/The News Journal. Please reach out to her at YLi1@delawareonline.com or @yyanyanli1 on X with any tips or story ideas.
This article originally appeared on Delaware News Journal: What should I do if someone is recording me in Delaware?