This appeal presents issues under the Michigan eavesdropping statutes, MCL 750.539 et *188 seq.; MSA 28.807 et seq. 1 In Docket No. 172610, plaintiff Dorothy Dickerson appeals by right the order denying her motion for a directed verdict. Defendants Multimedia Entertainment, Inc., and Sally Jessy Raphael cross appeal the circuit court’s refusal to admit certain evidence. We reverse the order denying a directed verdict and remand for a determination of plaintiff’s damages consistent with this opinion. We affirm the exclusion of evidence. In Docket No. 176209, defendants John Mroz and Steve Bostwick appeal by right the denial of their motion for sanctions, contending that plaintiff’s claims against them were frivolous. We affirm the denial of sanctions.
How different life in this state would be if everyone had to expect that their every conversation, their every careless phrase or ill-advised statement could be captured and preserved for all time. Such a life-style is not what is expected nor desired by the members in a free society. [People v Hall,88 Mich App 324 , 330;276 NW2d 897 (1979).]
I. UNDERLYING FACTS
This case involves the surreptitious, nonconsensual recording, simultaneous transmission, and later broadcast of plaintiff’s private conversation with her children by certain defendants, who were not themselves parties to the conversation. In 1988, plaintiff, then a fifty-six-year-old mother of eight and a member of the Church of Scientology for twenty years, began to work as a staff member for the Church of Scientology. In 1991, one of her daughters, Valda Gradas, decided to confront plaintiff about her increasing *189 involvement with Scientology. Ms. Gratias felt that the Church of Scientology was dominating plaintiff, causing her to sever all ties to her family.
Ms. Gratias intended to appear on the Sally Jessy Raphael television show, which is produced and syndicated by defendant Multimedia. On May 26, 1991, Ms. Gratias and her sister wrote to their mother of their intent to contact the national media to “expose” Scientology. 2 Ms. Gratias then contacted the Sally Jessy Raphael show. Indeed, plaintiffs own diary entry of June 6, 1991, reflected her knowledge that Ms. Gratias would appear on the show. Plaintiff had no inkling, however, that her daughter planned to videotape their conversation for rebroadcast on national television. Ms. Gratias told the show’s producer that she wanted to record surreptitiously her conversation with her mother. The producer then contacted defendant G.T.N., a Michigan corporation, and arranged with G.T.N. to record the family’s conversation while a concealed microphone worn by Ms. Gratias simultaneously broadcast it.
On Saturday, June 9, 1991, Ms. Gratias, her husband Doug Gratias, and plaintiff’s son Eric arrived unan *190 nounced at the Scientology offices. Plaintiffs daughter was visibly upset and sought a “heart-to-heart” conversation with her mother. Because plaintiff did not wish to disrupt her co-workers and wanted to prevent others from overhearing their discussion, the family went to a nearby public park in Ann Arbor, where they sat on park benches. At the park, plaintiff’s children discussed with their mother her income, the stability of her marriage, and her religious beliefs. At no point did defendants or plaintiff’s children inform plaintiff that Ms. Gratias was wearing a transmitting device that was broadcasting their conversation surreptitiously to defendants, third-party nonparticipants.
The microphone Ms. Gratias wore transmitted the family’s conversation to recording equipment in an unmarked van parked nearby. Defendant G.T.N., through its employee defendant John Peak, simultaneously recorded the audio and video portions of Mrs. Dickerson’s conversation with her son, daughter, and son-in-law. Four vignettes from that recording were thereafter replayed on defendant Raphael’s television show in July 1991.
In plaintiff’s suit, she alleged, among other counts, violation of the Michigan eavesdropping statutes, MCL 750.539 et seq.; MSA 28.807 et seq. The trial court denied plaintiff’s motion for a directed verdict regarding the alleged violation of the statutes. The jury thereafter returned a verdict of no cause of action in favor of defendants. 3
*191 Preliminarily, this case does not involve the media’s First Amendment right to report a story. Nor does this case involve the merits of the Church of Scientology, despite the parties’ determined efforts to interject that issue. This case also does not turn on Ms. Gratias’ right to record a conversation in which she participated. Rather, this case presents the narrow issue whether the Michigan eavesdropping statutes prohibit third parties from recording covertly, while it occurs, a private conversation in which they are not participants and then rebroadcasting that conversation.
n. THE EAVESDROPPING STATUTES
This case reqúires that we interpret the Michigan eavesdropping statutes. Statutory interpretation is a question of law that we review de novo.
Attorney General ex rel Dep’t of Natural Resources v Michigan Property & Casualty Guaranty Ass’n,
In Michigan, unlawful eavesdropping is a felony:
Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both. [MCL 750.539c; MSA 28.807(3).]
Similarly, divulging unlawfully obtained information is a felony:
Any person who uses or divulges any information which he knows or reasonably should know was obtained in violation of sections 539b, 539c or 539d is guilty of a felony, pirn *192 ishable by imprisonment in a state prison not more than 2 years, or by a fine of not more than $2,000.00. [MCL 750.539e; MSA 28.807(5).]
Additionally, Michigan statutory law provides the following civil remedies for eavesdropping violations:
Any parties to any conversation upon which eavesdropping is practiced contrary to this act shall be entitled to the following civil remedies:
(a) An injunction by a court of record prohibiting further eavesdropping.
(b) All actual damages against the person who eavesdrops.
(c) Punitive damages as determined by the court or by a jury. [MCL 750.539h; MSA 28.807(8).]
Under statute, “eavesdropping” is defined as “to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse.” MCL 750.539a(2); MSA 28.807(1)(2). The parties do not dispute that defendants overheard, recorded, amplified, and transmitted the discourse of others without the permission of all. Defendants nevertheless argue that the conversation was not “private” and was not the discourse of “others.”
When interpreting the eavesdropping statutes, the circuit court relied on Fourth Amendment cases involving law enforcement activity to detect criminal behavior. The eavesdropping statutes, however, specifically exclude from their ambit law enforcement personnel acting within their lawful authority.
In re Jenkins,
Because the eavesdropping statutes do not define the term “private,” we resort to the dictionary to ascertain the meaning of the term.
Nelson v Grays,
The circuit court next erred in construing the eavesdropping statutes as allowing a private participant in a conversation to broadcast it simultaneously to other private nonparticipants.
People v Collins,
Additionally, the circuit court erred in reasoning that any conversation broadcast by a participant is ipso facto not private. Some authorities have concluded that the defendants who overheard transmissions from a cordless telephone,
Tyler v Berodt,
877 F2d 705 (CA 8, 1989), and a mobile radio telephone,
Edwards v Bardwell,
Further, to hold that plaintiff’s conversation was not private because the surreptitious microphone broadcast it on public airwaves would nullify the legislative intent in our eavesdropping statutes. See, generally,
People v Ward,
m. THE DIRECTED VERDICT
Having so construed the statute, we now turn to plaintiff’s motion for a directed verdict. In reviewing a motion for a directed verdict, this Court considers the evidence adduced through the time of the motion in a light most favorable to the nonmovant to determine whether a material issue of fact existed.
Haberkorn v Chrysler Corp,
The uncontroverted evidence showed that Ms. Gratias intended to confront plaintiff about her involvement with Scientology and then to appear on the Sally Jessy Raphael television show. Ms. Gratias told the show’s producer, a Multimedia employee who handled background information and logistical details, that she wanted to tape their confrontation. Both Ms. Gratias and the producer knew that plaintiff would not have consented had they asked her for permission to tape the family’s conversation. Plaintiff already had declined invitations to appear on the show. Nonetheless, the producer contacted defendant G.T.N., a local business with the facilities to assist in the secret taping. The show paid for the airfare for Ms. Gratias and other family members from their *196 homes out of state to Ann Arbor, the location of plaintiffs Scientology office.
Defendant Peak provided Ms. Gratias with a small microphone that she hid under her sweater. The microphone transmitted the conversation between plaintiff, Ms. Gratias, and other family members via FM radio waves. A receiver in G.T.N.’s van, which contained the audio and video recorders, picked up the FM signal and recorded the conversation. The broadcasting microphone was described as essentially a miniature FM radio station, with a range of “possibly” up to one mile “in clear space.”
Plaintiff testified that she had expected to have a “very private conversation” with her daughter. Indeed, Ms. Gratias reinforced this expectation by inviting plaintiff for a “heart-to-heart” discussion. As a matter of law on this record, plaintiff did not waive her expectation of privacy, nor did she conduct herself in a manner that would estop its assertion. Doe, supra at 86-87. Although the conversation occurred at a picnic table in a public park and an occasional passerby may have walked near the table, the videotape shows that no one lingered to overhear the conversation. Moreover, many minutes of discussion of an intensely personal nature passed without the slightest intrusion. This family’s conversation certainly was private for purposes of the Michigan eavesdropping statutes. MCL 750.539c; MSA 28.807(3).
Defendants also contend that anyone with a FM receiver tuned to the particular broadcast frequency could have overheard the conversation. Whether others conceivably could have stumbled onto the FM frequency while tuning the radio is speculative on this record and irrelevant to the interpretation of the stat *197 utes. Defendants cannot argue that they inadvertently tuned into the broadcast. Defendants intended that the G.T.N. employee covertly taping in the van would receive the transmission. As a matter of law, therefore, defendants Peak and G.T.N. violated the statutes by using a device to eavesdrop on the private conversation without the consent of all the parties thereto. Multimedia, through its employees, violated the statutes by employing G.T.N. and Peak to eavesdrop. Uncontroverted evidence also showed that a portion of the videotape 4 divulging the conversation was broadcast on the Sally Jessy Raphael television show, produced and distributed by defendant Multimedia. The divulgence violated MCL 750.539e; MSA 28.807(5).
Defendant Raphael testified that she generally received information about the guests on the show but did little to prepare the show’s segments. Other Multimedia employees decided to broadcast the tape; Raphael testified that she had no control over that type of decision. Yet Raphael also testified that she had on one occasion exercised discretion over whether a videotape would be broadcast on the show. We cannot ignore Raphael’s integral role in her own show. Ultimately she is responsible for the show’s content.
Defendants contend that the jury reasonably could have found that the recorded conversation was not the “private discourse of others” because plaintiff had no reason to believe that her family would keep the conversation confidential. In
Sullivan v Gray,
117
*198
Mich App 476, 482;
Sullivan remains instructive on this point:
While a participant may record a conversation with apparent impunity, his sole consent is insufficient to make permissible the eavesdropping of a third party. Thus, while a participant may record a conversation, he apparently may not employ third parties to do so for him. . . . When a third party is unilaterally given permission to listen in upon a conversation, unknown to other participants, those other participants are no longer able to evaluate and form accurate expectations since they are without knowledge of the third party. Therefore, it is not inconsistent to permit a person to record and utilize conversations he participates in yet deny him the right to unilaterally grant that ability to third parties. [Id.]
Although defendants vigorously advocate that the above quotations merely are dicta, the Sullivan Court properly analyzed the principle that controls this case. We accordingly adopt it as our holding.
Thus, although a participant may expect that a conversation will be repeated, it remains private within the meaning of the statutes and may not be overheard, recorded, amplified, or transmitted to others without the consent of all participants. In other words, Ms. Gratias could have repeated the substance of her conversation with plaintiff. The risk of repetí
*199
tion does not authorize defendants to secretly listen, broadcast, and tape the private conversation of others. “[I]t is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in.”
United States v White,
Defendants’ reliance on an opinion of the Attorney General is misplaced. The Attorney General opined that a private conversation within the meaning of the statutes must be expected to remain confidential. OAG, 1981-1982, No 6100, pp 741, 743 (September 10, 1982). The Attorney General offered the opinion in response to the question whether a child’s parent had a right to tape-record a statutorily mandated committee meeting designed to formulate a plan for the child’s education. As the Attorney General stated: “A legally required meeting of representatives of a public agency to discuss provision of legally required programs and services is not a private discourse or conversation.” Id. The opinion of the Attorney General clearly is based on facts distinguishable from the instant case, where plaintiff engaged in a private conversation with family members.
Defendants next aver that the conversation was not private because plaintiff later discussed with others certain facts from that conversation. Defendants cite no case law or other authority for this proposition; the argument effectively is abandoned.
In re Powers,
Defendants finally argue that the conversation recorded in the G.T.N. van was not a conversation “of *200 others.” This argument is based on an erroneous application of Collins, supra. We reiterate that although a participant in a conversation may record or repeat a conversation, the participant may not transmit it. Sullivan, supra at 482; MCL 750.539a; MSA 28.807(1). Similarly, defendants G.T.N. and Peak argue that because they made the recording at the request of Ms. Gratias, a participant in the conversation, they did no wrong. These defendants misapprehend the Michigan statutes. Even if they acted as agents of a participant in the conversation, they nonetheless used a device to eavesdrop “upon the conversation without the consent of all parties thereto,” contrary to MCL 750.539c; MSA 28.807(3).
Defendants Multimedia and Raphael assert that the Dickerson family’s First Amendment right to tell their story, and defendants’ First Amendment right to provide a forum for that story, protect them from liability under the Michigan eavesdropping statutes. We disagree. While the First Amendment protects the publication of truthful information of legitimate public concern,
Anonsen v Donahue,
Multimedia defendants also point out that the statutes impose liability only on those who “knowingly” violate the statutes. Because defendants consulted attorneys who advised them that their actions would be permissible, they argue that they did not “knowingly” commit a violation. Defendants cite no authority for this proposition; therefore, they effectively have abandoned it.
In re Powers, supra
at 588. Moreover, despite defendants’ assertions, the record reflects that one attorney who opined that the taping would not violate the statutes rendered that opinion only after the taping had occurred. The other attorney simply advised defendants to tape conversations that occur in a public place. We do not understand that advice to relate to the conduct or statutes at issue. A private conversation may occur within the sight but not the hearing of others. See, e.g.,
People v Camak,
IV. ADMISSION OF EXHIBITS
As cross-appellants, Multimedia defendants assert that the court abused its discretion in failing to admit certain exhibits. This issue may be relevant with respect to the damages hearing following remand. We review evidentiary decisions pertaining to relevance for an abuse of discretion.
Solomon v Shuell,
V. SANCTIONS
In Docket No. 176209, defendants Mroz and Bostwick
5
argue that the trial court erred in denying their motion for sanctions, claiming that plaintiff’s issues were frivolous. MCL 600.2591; MSA 27A.2591. We review the trial court’s findings for clear error.
Avery v Demetropoulos,
In summary, we affirm the order denying sanctions in Docket No. 176209. With respect to Docket No. 172610, the testimony and evidence showed that Ms. Gratias contacted representatives of Multimedia who procured defendants G.T.N. and Peak to use a device to eavesdrop upon the private discourse of plaintiff, thereby violating MCL 750.539c; MSA 28.807(3). The record also shows that defendants Multimedia and Raphael divulged information obtained in violation of MCL 750.539e; MSA 28.807(5). We reverse the denial of plaintiff’s motion for a directed verdict and remand to the trial court for a hearing on damages. We do not retain jurisdiction.
Notes
Plaintiff’s allegations of invasion of privacy and intentional infliction of emotional distress are not at issue in this appeal.
The national media already had begun reporting on Scientology. For its May 6, 1991, cover story, lime Magazine published an article entitled "Scientology: the Cult of Greed." Scientology sued for libel, relying in its complaint on several statements in the article, including:
‘‘[T]he church . . . survives by intimidating members and critics in a Mafia-like manner.”
“ ‘Scientology is quite likely the most ruthless, the most classically terroristic . . . cult the country has ever seen.’ ”
“Those who criticize the church — journalists, doctors, lawyers and even judges — often find themselves framed for fictional crimes, beaten up or threatened with death.” [Church of Scientology Int'l v Time Warner, Inc,806 F Supp 1157 , 1162 (SD NY, 1992).]
The voluminous record before us suggests that the jury was influenced unduly by numerous peripheral issues and could not easily focus on whether defendants’ conduct violated the Michigan eavesdropping statutes.
Only the audio portion of the tape is at issue in this case. Because the meeting occurred in a public park, plaintiff’s video image was open to the public.
Defendants John Mroz and Steve Bostwick also are G.T.N. employees.