It's actually not. I asked @TrekZone what their pre-agreements were, and my conclusions here are based on that information, and what was presented.
EXCEPT @TrekZone is not in California. They are in Australia. And thus, even if there was a case here for this (there isn't), Matthew would be subject to the laws of Australia, not California.
Also, the California law (as a two-party consent state) may not allow you to withdraw consent once it's been granted. If this had been filmed in California, and it went to court, that would be something a court would have to decide. But there are other factors here, too — like the fact that Peters did not kill the camera or the microphone. He had the ability to do that, and chose not to do it. If there were questions about the interview, and he truly wanted to go off the record, he would've killed the feed, and moved to a phone call, or done something to support that move.
You don't just get to remove consent in a vacuum.
Bawden is a very experienced public relations professional. He has dealt with media many times, or at least should be trained in how to deal with it. He knew they were in an on-camera interview, and that he was being called. He knew he was on speaker, and in earshot of Matthew, because he even addresses Matthew directly.
It is Bawden's responsibility (as it is Peters') to ensure that OTR has been granted. When Peters says, "We're off the record," it is his responsibility to ensure there is an acknowledgement from Matthew. When Bawden is told he is OTR, it is his responsibility to verify that with Matthew.
If there was a legal case here for some reason, and there was no pre-agreement to allow unilateral OTR, a court would absolutely look to see if there was some type of agreement or acknowledgement from Matthew when the OTR statements were made. Because the agreement was ON the record, and, in order to change that agreement, both sides would have to agree.
Also, courts have defaulted in the past that when you are talking to a reporter, you have to assume everything you say is on the record, unless you have some type of relationship or friendship outside of the reporter's job functions that would, at least, create a plausible understanding that what you were saying was private.
That doesn't apply here, first because it wasn't filmed in California, and second because Peters was aware he was being recorded. He even acknowledges he agreed to an on-camera interview in the interview. So there is no question there.
I hope you understand that there is a major difference between a reporter and a customer service representative. One big difference? One of them is mentioned specifically in the Constitution. Guess which one?
Not required. Once again, it is Peters' and Bawden's responsibility to VERIFY they are off the record, because courts have defaulted in the past that you are always on the record when you communicate with a reporter. Whether it's by phone, in person, in email, in Facebook messenger ... if you are aware you are talking to a reporter, and you're talking to that reporter in the capacity of his job as a reporter, that reporter is talking to you in an effort to collect information for a story. You are defaulted on the record, at least in any legal sense there would be, and any off-the-record would come from an explicit agreement between the two parties. Without that explicit agreement — which means a meeting of the minds, both sides have to agree — there is no off-the-record.
It's like if I see you have a nice Corvette, and I say, "I am going to pay you $500 for it." I can't take you to court and force you to give me that price just because I declared it, because we never had a meeting of the minds that you would sell it to me for that. You never agreed. And I can't even say, "Well, when I said it, he didn't say anything -- he had a responsibility to reject it, and by not rejecting it, that means he accepted it."
Nope. Doesn't work that way.
Peters clearly stated he was OTR, but that is not enough. And it's good to know that if you ever talk to a reporter in his or her official capacity as a reporter, that you understand that reporter's OTR policy. Because everyone is different (remember, OTR is an explicit agreement between two parties, there are no other laws regarding it outside of invasion of privacy — it becomes more of a contract law situation).
For example, my OTR policy is that you must declare OTR (and receive my agreement) BEFORE you say something, not after. Depending on the interview subject, I might provide leeway, but that is totally at my discretion.
When an interview subject asks to go off the record, I literally say, "You are off the record" and maybe even, "You are off the record, and I've stopped typing." If you say "off the record," and you don't hear a specific acknowledgement like that, you should follow up with, "Are we off the record now?" Because otherwise, you could very well still be on the record.
EDIT: By the way, I responded to this as I saw it, and later saw Carlos' response. And his response is spot-on as well.
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