Can Taylor Swift actually sue Kim Kardashian and Kanye West for recording their 'Famous' phone call?

There appears to be a lively debate over whether or not Kim Kardashian broke the law when she recorded a phone conversation between her husband, Kanye West, and singer-songwriter Taylor Swift.

Kardashian released the video of the call via Snapchat depicting West asking Swift about a line from his song “Famous” from The Life of Pablo. “I feel like me and Taylor might still have sex / Why? I made that b*tch famous,” West rapped in the song. Amid outrage, West said he had consulted the award-winning pop star prior to releasing the track – a claim her spokesperson denied.

Later, Kardashian teased that the conversation had been captured on video – two minutes of which she released Sunday night, sparking monumental clamor on social media. But the issue also raised concerns over the legality of the recording itself.

In her statement, posted to Instagram, Swift claimed that the call was “secretly” recorded, calling the revelation of the video “character assassination”. Swift had reportedly threatened West with legal action for the video, but does the pop star actually have a case against the power couple?

Under Section 632 of California penal code, it is illegal to record a private communication without the consent of all parties. An unidentified source told TMZ that the video was recorded in an Los Angeles studio – although there is still some speculation that they were in New York when the recording took place.

The Hollywood news outlet also claimed that, in the full duration of the video, Swift knew she was being overheard by producer Rick Rubin and film crew in the room, reducing the expectation of privacy.

“It’s one thing if you sit down with your boss and record them, it’s a little different if you sit down and place a GoPro [camera] and the desk and start talking,” Sean McHenry, an attorney at the San Francisco-based firm Minnis & Smallets, LLP, told The Independent. “If you walk in to talk to your boss and there’s a film crew there, it probably does reduce the expectation of privacy.”

“You kind of are implicitly giving your consent when you acknowledge that there’s a film crew there and have no objection.”

But if Swift did not actually know the conversation was being either filmed or overheard by a camera crew and producer, then legal precedent would indicate that she does, in fact, have a case against the superstar couple.

Mr McHenry cited a California Supreme Court case from 2006, Kearney v Salomon Smith Barney, Inc. If the case serves as precedent, Swift would have a case against West and Kardashian, even if they were in New York and she was not aware of the call.

In the case, the defendant, the investment bank Salomon Smith Barney (SSB) was accused of recording phone calls with its California clients from its Atlanta-based call centre. Georgia state law does not require two-party consent when recording a call, like California, presenting a “choice-of-law” issue.

The court sided with the plaintiffs, and determined that “California law should apply in determining whether the alleged secret recording of telephone conversations at issue in this case constitutes an unlawful invasion of privacy”.

But if Swift were aware that she was speaking to a room full of people, then she would not necessarily have a case.

According to Section 632, confidential communication applies to situations that “reasonably indicate” the confidentiality between participating parties. However, it excludes communication made in public gatherings “in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

Should Swift decide to pursue defamation charges, she would have to present proof of malice on part of West and Kardashian.

“Malice is defined as ‘with knowledge of the falsity’, knowledge of the false statement, or a reckless disregard for the false statement,” Karen Fultz, professor at Western Michigan Cooley Law School, told Vanity Fair. “This means you fabricated it or you had serious doubts as to its truthfulness, and you still published that statement. ...

“Taylor would still have to establish that [West and Kardashian] did it maliciously. And that would be a bigger issue that public figures would have to overcome in order to prevail in defamations claims.”

Difficult as a defamation suit may seem, Swift may face more backlash than she wants if she pursues legal action against West and Kardashian, according to public relations expert Farrah Parker.

“While Taylor Swift may be well within her legal rights to sue Kanye,” Ms Parker told The Independent via email, “the public relations implications may be more dangerous.

“By extending the battle, she runs the risk of damaging her brand and further highlighting the fact that she may have fabricated the story.”