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Video Mystery Shopping Legal Issues

Video mystery shopping is a practice that many organizations frequently turn to when they need to evaluate their products and customer service offerings at the store level. A well-executed mystery shopping audit provides companies deep insight into what their customers are experiencing at the store level via post mystery shop surveys completed by mystery shoppers.

While these tried and true surveys provide organizations with a great deal of insight, new advances in micro audio and video technology are now giving many organizations the power to also use video mystery shopping to see and hear what their customers experience first-hand.

Video mystery shopping audits are conducted in the same manner that a traditional mystery shop. However, when performing a video mystery shopping audit, the secret shopper will wear a hidden video device into the store or restaurant so their transaction is fully recorded.

Once the video mystery shopping audit is completed, the mystery shopper will send the video in to the hiring agency, typically accompanied by a survey. The organization or market research firm then reviews the video in order to glean and analyze data and complete both quantitative as well as qualitative analysis reports.

As video mystery shopping becomes easier and more popular, companies should understand there are legal issues that should be considered when planning and conducting these video audits.

Each state has laws that protect its citizens against being unlawfully or unknowingly captured on video and audio recordings. Each state can fall into one of two categories: a one-party state or a two-party state.

In a one-party state, the recording party is not legally required to notify the other party about being recorded. That is, only “one party” needs to know the recording is taking place. In two-party states, both parties need to be informed and consent to be recorded.

As of 2012, there are currently twelve states that require that each involved party be notified — and consent to — being recorded.

  • California
  • Connecticut
  • Florida
  • Illinois
  • Maryland
  • Massachusetts
  • Michigan
  • Montana
  • Nevada
  • New Hampshire
  • Pennsylvania
  • Washington

The remaining 38 states require that only one person to be notified of the recording process, and that can be the caller or recorder.

When it comes to video mystery shopping in a two-party state, the company must give consent for a mystery shopper to record at their place of business. In addition, each employee needs to provide informed consent. Typically, employees are simply required to sign something in their contract or handbook consenting to be recorded.

Organizations that are interested in reaping the benefits of a video mystery shopping audit are encouraged to do so through a reputable mystery shopping agency. A reputable video mystery shopping agency will be aware of the rules and regulations within each state and take care to properly adhere to all state laws.