I think the law says the agreeing party has to know and consent to the recording. There may be some gray area with strapping a recording device to a special needs child (or any child, for that matter) and meeting this requirement.
Well if it is anything like my state, the child can either legally consent with parental approval or they cannot legally consent, in which case their power of attorney (usually just their guardian) is empowered to consent on their behalf. My sister is non-verbal but can still own and hold property and enter into contracts with my father or mother consenting on her behalf, and I'll be the one inheriting part of that power of attorney when my parents die.
This would apply to situations involving legal consent to contract (as such an agreement would cover), so we'd either have a case where the child is cognizant enough for the parent to negotiate consent with them (and if the child is mentally capable enough to have to consent, one can only imagine it wouldn't be hard to convince them to agree to the plan), or the child is too developmentally challenged to issue consent and thus the mother (unless she signed away the power of attorney for some reason, but by default I believe she has it) would be the only one needed to consent, and would be consenting on behalf of the child, and the child has by extension legally consented to the arrangement.
I don't really know what situation the child is in, but the story I am seeing states that the child was refusing to go to school, which leads me to believe the hidden camera may have been an element of convincing the child to go back to school, which would imply consent on behalf of the child. And as long as we have both consent of child and parent, it should be gold.
And after writing all of that it and doing more research
it may be a moot point anyways, since I've realized the lawsuit
isn't against the mother who made the recording, it's on the media organizations who broadcast it.
This might be like a Hulk Hogan/Gawker situation where they're trying to argue that an illegally made recording was broadcast without consent of any involved parties,
however I'm not sure how they'd make that case when they don't appear to be pursuing action against the production of the recording, just the distribution of it. In the Hogan case, the identity of the person who made the recording was unknown, so it makes sense no lawsuit targeted that person individually, but in this case everyone knows who was behind the recording.
Weirder still, this seems to be alleging that the
news organizations violated wiretapping laws by broadcasting this?? But
if that was somehow the case then the mother would be the one violating that law, and she's not the target of the suit.
Now if
I was a lawyer working for these people I would not at all want to go after the mother because that will look terrible to a juror with the aides going after their victim's mother in retaliation. But without going after the mother, I'm not sure how you would argue this in a court room, and I can only imagine the lawyers on defense will bring up and ask how the media corporations can be guilty of this and yet the aides aren't pursuing "justice" against the woman who actually made the recording.
