In wake of everything that's happened with the #KimExposedTaylorParty or whatever you prefer to call Kim Kardashian's Snapchat takedown of Taylor Swift, TMZ claims to have a copy of a letter Taylor sent to Team Kanye in February, shortly after the phone call about "Famous" was made. One source tells TMZ that the call was made and recorded in an "L.A.-area studio," which brings California law into play, as it is one of several states requiring the consent of both parties when recording. (New York, on the other hand, is a one-party state). TMZ reports that the letter demanded Kimye to "immediately destroy all such recordings, provide us of assurance that this has been done, and also assurance that these recordings have not been previously disseminated."
Cosmopolitan.com reached out to Los Angeles-based attorney William Hochberg at Greenberg Glusker Fields Claman & Machtinger LLP to weigh in on whether or not Taylor has a case against Kimye. Hochberg, who specializes in music and media law and most recently spoke to us about Kanye's "Famous" video, and Kelly Raney, an associate at the firm, break it down below.
Does Taylor have grounds to sue Kim and Kanye at this point?
First, I'm assuming TMZ's source accurately says the call was recorded in a studio in California, which is a two-party consent state. If Kimye did not tell Taylor that they were recording the phone call, they may be exposed to both criminal and civil liability under California's Invasion of Privacy Act (CIPA) as well as under tort law [a civil wrong that causes harm to a person]. There is a one-year statute of limitations for a civil action under CIPA, and I believe a criminal action of this sort usually runs its course in less than that time. Now, if no prosecutor chooses to pursue this within the next month or so, Taylor might bring a civil lawsuit [which doesn't require initiation by a state prosecutor].
By the way, the criminal statute doesn't provide for very stiff fines, only $2,500. But it also carries up to one year in jail time. So, while the fine is a mosquito bite for Kimye, the threat of jail time may sting their psyches. On the other hand, it could make great reality TV. Now, regarding the civil statute, the statutory damages are a bit higher, at $5,000 per violation, or up to three times the amount of actual damages. Under tort law, Kimye could also potentially face sky-high punitive damages.
What would it take for Taylor to win?
For Taylor to succeed on a claim under CIPA, she would have to make a factual showing that she had a reasonable expectation that the call was private. A conversation is deemed "confidential" under CIPA only if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.
On a tort claim of invasion of privacy, Taylor would have to show mental distress consisting of injury to her peace of mind and feelings. Ironically, bringing a tort lawsuit where you have to prove emotional distress is itself very stressful, and may not seem worth it to Taylor. On the other hand, the CIPA claims don't require proving emotional distress, which may be an incentive to bring a legal action or cooperate in a criminal prosecution without fear of delving into evidence of her psychological states. The trade-off is that the sky-high punitive damages are only available in the tort claim where you need to delve into the emotional distress.
[Editor's note: TMZ claims to have heard the full tape of Taylor's phone call with Kanye and that since other parties like Rick Rubin were around for the call, she had "no expectation of privacy."]
Does the letter Taylor's team allegedly sent Kimye already have bearing?
The letter and reported threat of criminal charges may be extremely important to any kind of case, but again, Taylor cannot bring criminal charges herself. A prosecutor would have to assess and decide if there's a sufficient basis to bring criminal charges against Kimye. Usually, that assessment happens quickly, in a month or two.
But to take a different angle on the letter, Taylor's lawyer will be careful in the letter not to threaten to go to a prosecutor to urge a criminal prosecution unless Kimye accedes to Taylor's demands, as that may be itself an unlawful coercion or blackmail to force Kimye to do what the demand letter asks and may also subject the lawyer to discipline.
Does Snapchat receive the same treatment in court as other social media platforms like Twitter or even YouTube?
There is not much legal authority on the issue of whether Snapchats are admissible as evidence in a lawsuit. As with any social media post or video, the evidence must be authenticated before a court will allow it to be used in a lawsuit. That process can be complicated, but nothing so far seems to indicate authenticating a Snapchat story is much more difficult than a YouTube video or a Facebook post.
The two most high profile cases involving this social media service are a very recent rape case where videos of the assault were Snapchatted and the other concerns a Playboy Playmate who Snapchatted a picture of a nude woman at the gym. In the rape case, it appears (as of the end of last week) that the prosecutor is encountering some difficulty admitting the videos themselves because she cannot seem to find a way to have them authenticated, but a witness did testify to seeing them and taking screenshots of part of the videos. In the Playmate case, the LAPD is apparently deciding whether to bring criminal charges, but no civil suit has been filed yet (as far as I am aware), so the admissibility of the Snapchat picture is not yet at issue.
So the law is struggling to keep up with technology and it may take a while for the courts to deal with Snapchat evidence, all of which could run to the benefit of Kimye should they face legal action.
Who is the real winner of the #KimExposedTaylorParty?
If she doesn't face criminal or civil legal action, then Kim Kardashian and her Snapchat account are the real winners. Kim only joined Snapchat in March 2016 and posted on her Twitter "do u guys follow me on snap chat? U really should ;-)." Her decision to hint at her Snapchat post and direct her millions of Twitter followers to her new Snapchat account may indicate she chose to post the video on Snapchat (as opposed to her other social media accounts or platforms) to try to increase her number of followers and exposure on Snapchat.
This interview has been edited and condensed.
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