Recording Conversations - Consent and Its Limits

The complainant, Matt Whitman, is a Halifax city councillor. He did a phone interview in which he said he was never told he was being recorded, nor that the interview was on the record. The reporter said that she had informed Mr. Whitman that she had turned on her recorder. Since the tape was deleted, there is no way to know what really happened. It is essential an interviewee is aware of recording, but calling a public figure about a matter in the public interest does not require explicit mention of how it is to be used, as it is understood to be on the record. Being upfront with as much information as possible is best practice.

COMPLAINT

You are a city councillor in Halifax. At the beginning of February, you had retweeted a letter to Halifax city council from a group called ID Canada, criticizing it for removing a statue of General Edward Cornwallis. The group is identified as white supremacists. You received tweets pointing this out, and you were called by a CBC reporter for comment about the incident. You were shocked to hear parts of your phone conversation broadcast on the evening television newscast. You said you did not know you were being recorded, and you did not give permission to have the conversation recorded. You considered this unprofessional:

I cannot begin to explain to you how shocked I was to hear my voice on the TV broadcast without my permission… I had no notification that I was being recorded… I’m used to doing interviews… But not with this level of professionalism.

In a follow-up phone call with me, you said at no time were you aware you were being recorded and you are not sure if the reporter, Emma Davie, identified herself as a reporter - and she certainly never stated that the conversation was on the record.

MANAGEMENT RESPONSE

Nancy Waugh, the Managing Editor for CBC News in Atlantic Canada, replied to your concern.

She agreed with you that the reporter should have been clearer about the circumstances of the call. She acknowledged that she never explicitly stated the interview was for broadcast, but she added she considered that it would be “entirely obvious” that this was a “professional interview.” There were two phone calls. In the first one she said Ms. Davie called you and stated she was turning on her recorder. It was a brief call in which she asked you about the retweet and the criticism that you had passed on material from a white supremacist group. You told her you would be deleting the tweet. The second interview was for some follow-up questions. Ms. Waugh did not mention it in her response, but there was also a technical difficulty with the first recording, and so she had to speak to you again.

She said that you are an experienced politician who has been frequently interviewed by reporters:

I note that you have served as a member of Halifax Regional Council since 2012 and have been an outspoken representative of your district over the past six years. You have appeared often in the media and maintain a lively social media presence, engaging frequently with members of the public and the media...An experienced politician might well assume that his response to any reporter is on the record and likely to be used publicly.

She also noted that you did not state in your complaint that you would have declined to speak if you knew your remarks were to be used for broadcast. She saw it as a legitimate exchange between reporter and politician, and that is not surprising it was used:

Your email does not suggest that you would have declined Ms. Davie’s request for comment if she had been more precise about the likelihood of broadcast. Nor do you suggest your responses would have been different. I’m left to conclude that you were speaking to her honestly and that she accurately and honestly related your position to the audience.

She explained that CBC Journalistic Standards and Practices require journalists to be open about who they are when they approach sources, and endeavour to give a balanced range of views.

REVIEW

Your complaint raised two related but separate issues. One was whether you were informed that the interview was being taped, and the other was whether you were aware you were on the record. As Ms. Waugh mentioned, there were two recordings. There was a brief conversation and shortly thereafter the reporter called you back. I am told the second call was necessary because there was a technical problem with the first. Because of the glitch, that tape was not kept.

You are equally clear that you did not hear any reference to the fact that she was recording, and you are not even sure she clearly identified herself or stated that she was soliciting your comment for a story.

It is highly problematic that this first recording is not accessible. There is no way to know precisely what happened. I appreciate that you did not hear the advisory. You also believe the recording began from the moment you answered the phone, and therefore you couldn’t have known. However, Ms. Davie remembers that when you answered the phone she told you it was “Emma from CBC”, and that she was turning on her recorder. It is very important that interviewees be clearly told they are being recorded. I can make no definitive ruling here since there are two versions of events I cannot verify. If she thinks she said it - and you don’t recall hearing it - it is a reminder that it is good practice to seek confirmation from an interviewee that he or she is aware the recording has begun. This first conversation had too much background noise to be usable, so Ms. Davie said she called you back 10-15 minutes later to ask more questions. The first recording was deleted.

You also stated you did not know the conversation was on the record. There is no explicit policy about stating categorically that the conversation is on the record. When reporters are approaching elected officials or those with public accountability about a matter of public interest, it is convention that the conversation is on the record unless it is explicitly deemed not to be. You said that in every other case in which you have been interviewed, the reporters have told you when the formal part of the interview was beginning and was on the record. I appreciate the need to be told when the preliminary chat is over and the core of the interview is beginning, but once a reporter engages with an interviewee, convention is that it is reportable. She clearly identified herself as a reporter from CBC. I asked you what you meant when you said to her “that’s the top story of the day” as it seemed to imply you were aware you were being interviewed for a story. You told me “what I meant was it must be a pretty slow news week if whatever a counsellor retweets is even a news story at all.”

EMMA DAVIE

Hi Matt, it’s Emma Davie calling back from CBC.

MATT WHITMAN

Hi there …

ED

Hi, so I saw you deleted the tweet, I just wanted to touch base again just, I guess, to see if there is anything else that you wanted to add. It sounds like you really didn’t know.

MW

I had no idea.

ED

You had no idea. You didn’t think to click on it, and, like, look at the group a bit more?

MW

Never, there was a letter written to the Council and the Mayor and I re-tweeted it, I didn’t click on their website and I have never met them, had coffee with them or know them at all.

ED

Okay, I mean, will you, I guess, next time going forward are you gonna be more cautious of that kind of thing, do you think?

MW

It’s just that a letter sent to the Mayor and Council and they tweeted it and I re-tweeted it and I didn’t have a chance to find out what their background was, who they are, where they are, and since you brought it to my attention I deleted it.

ED

Anything else you wanted to add?

MW

I guess that’s the top story of the day.

ED

Great, thanks Matt, bye.

CBC journalistic policy on interviews emphasizes the need to be open and honest about the purpose of the interview, and the need to identify oneself as a reporter:

We inform the interviewee of the subject of the interview. We do not provide in advance the questions they will be asked. That could give a false impression of spontaneity in the interviewee’s responses and unduly limit the interviewer’s ability to react to interviewee statements with supplementary questions.

We advise the interviewee of how we plan to use the interview. When an interview is recorded, it may be edited before publication for length or to select the relevant passages. At our discretion, we may choose to rebroadcast an interview in whole or in part, post it online or make it accessible in website archives, or not be published at all.

It is obvious that in a face-to-face situation, there is less room for misunderstanding as the reporter uses a visible recording device. The policy also addresses the question of recorded phone interviews. It particularly addresses the question of recordings made for note-taking purposes, but the principle is the same. There is a dispute in this case - whether there was an indication the conversation was being recorded. If this was recorded without consent, it would have required special approval to be aired:

We often record our conversations with information sources or potential guests for note-taking purposes. This is common practice and is generally done openly. It may also be done without the interviewee’s knowledge, on condition that:

  • disclosure that the conversation is being recorded could interrupt or imperil the conversation; and
  • the recording could contain useful evidence.
  • whether made with or without the source’s knowledge, recordings of conversations or pre-interviews are generally not published. We are aware that publication of this type of material could undermine a source’s confidence in journalists. It could also have legal or regulatory consequences.
  • we accordingly take care to explore all alternatives to publication of this type of material, in keeping with our journalistic values, and will refer to senior editorial management. We will publish it only in cases when it is in the public interest and publication is the best way to ensure the accuracy, fairness and balance of our report.
  • any proposal to broadcast a recording made without the knowledge of the interviewee is referred to the Director.

I can make no definitive ruling here about the question of being recorded. I can only emphasize that it is very important to be clear and explicit in most cases. There is evidence in the second recording that the reporter identified herself and gave the reason she was calling. Had she mentioned the first recording was unusable, all the ambiguity would be removed, but she did not. She told me that she will be sure to be very explicit going forward. I do not consider the lack of explicit mention of being on the record as a violation of policy. It is common journalistic practice, especially when dealing with public figures, that the default is the conversation and comments are reportable, from the moment the reporter identifies him or herself and the conversation begins. Going off the record requires an explicit discussion and understanding of what that term means.

Sincerely,

Esther Enkin
CBC Ombudsman