Recording a conversation without consent

marcmc4 · 11-10-2009 8:05pm #1

I had an incident with a disgruntled customer in work recently. An administrative error was made and the customer returned. I apologised sincerely for the error but the customer was having none of it. He started to shout at me and became increasingly agressive and angry. I asked him to leave the store and he refused and continued to shout. I asked him to leave twice more after this before he finally left the premises.
He returned the next day and served my boss with a letter of complaint about me. In the letter he mentioned that he had recorded the conversation between us on mobile phone. Fortunately my boss knows me well, and accepted my version of events and dealt with the complaint through the appropriate channels.
My question is this, Was the customer permitted to record a concerstaion between the two of us without my consent in Irish Law?
Is this an infringement of my privacy and has he committed an offence ( I feel completely disturbed by the fact that someone I dont know has a recording of my voice which he could do anything with)?
I would appreciate your comments

Tom Young · 11-10-2009 8:27pm

There is nothing wrong with the recording of the conversation simpliciter.

However, where no consent is ascertained it would generally not be correct to allow such a recording be used in the context of a trial or litigation, unless it can be proved or proven that the act of recording was subject to some sort of qualification or privilege. The question boils down to admissibility of evidence in litigation.

There has been circumstances where recordings have been committed to writing and sworn and admitted as documents in the context of trials, and I have seen an instance where recordings were admitted to evidence in the context of the Barristers disciplinary tribunal.

Recording telephone calls and interception is a thorny/controversial area and there has been cases on it: Herrity v ANP; Kennedy and Arnold v Ireland; and the ECHR case of Copland v UK.

There is an unenumerated right to privacy derived from the constitution Art 40.3. and to be frank it would be a difficult one to ground unless the subject matter of the recording was to damage your privacy rights to the extent that significant damage would accrue as a result.

EDIT: The ECHR Act 2003 and the Convention is only subject to judicial notice, but Article 8 - Privacy, also applies.

Was the customer permitted to record a concerstaion between the two of us without my consent in Irish Law?

Yes, but he could not use the recorded content without your consent.

Is this an infringement of my privacy and has he committed an offence ( I feel completely disturbed by the fact that someone I dont know has a recording of my voice which he could do anything with)?

No, as you were acting under the employ or as an agent of your employer.

Tom

Reloc8 · 12-10-2009 2:10pm

Actually I would tend to view this as a breach of the particular person being recorded's right to privacy. A lot would also depend on the use to which the recording was being put, as regards who would be entitled to assert the breach.

Tom Young · 12-10-2009 2:51pm

On that we differ, the person in the context of the above example is acting in the course of employment. I also make the point above in relation to uses of recordings, so on that we agree.

Reloc8 · 12-10-2009 3:08pm

Yep I should have said 'also' a breach of the recorded person's right to privacy.

I see it as no different in character where any extant right of an employee is breached whilst the employee is acting in the course of employment. Whereas the employer owns the work product explicitly by operation of law that isn't necessarily the case in respect of other fundamental personal rights.

For instance I could see a scenario where a given person could indeed insist that the recording was used in court proceedings without the recorded person's consent - e.g. the employer in order to evidence an alleged breach of contract/misbehaviour by employee. In that instance the employee's right is probably trumped, but it nonetheless exists.

I could also see a scenario where the employer wouldn't be bothered objecting to the use of the recording in court, but the employee could successfully assert a breach of his/her own individual right to privacy...e.g. criminal proceedings against the employee to which the recording is alleged to relate. Indeed in that scenario the employer would have no standing to object.

And finally it might even be that the employee's right to object to the introduction of a recording made without notice is actually in general stronger than anyone else's including the employer. That would be very context specific of course. So I do think there is probably two divisible/distinct rights in play and the fact that it occurs during employment might not be determinate, depending on context/what kind of case/who is a a party in court etc.

Interesting one though

edit : I'd have to have a think about whether this is even a strong privacy case for employee or employer. For either party its no more than an accurate transcript of what a given person said, so what is the difference in theory between this and a person giving precise oral evidence of a conversation with a given person. There are no relevant hearsay considerations in respect of admissibility. On balance as this arises outside a conversation of a private nature I'd probably conclude the recording would be admissible if it were relevant to a given case, civil or criminal.

Tom Young · 12-10-2009 4:09pm

Well yes. My take is linked to defamation law and practice.

I would see it as a communication published in the course of employment and therefore not subject to the general unenumerated rights of privacy or indeed ECHR Art 8 standards.

As the publication of whatever was stated by the employee happened the course of his acting in a public representative capacity or agent of the employer the communication and indeed publication attracts privilege, that privilege being qualified in the context of the transaction and publication inter partes the receiver of the communication being the customer who in this instance recorded the conversation, and possibly did so validly as an aide memoire but in threatening to use it, or indeed republish it in some form may have infringed the rights of the employee as a private citizen.

Edit: The injured party would be required to show some form or level of damage.

But as all employers should know, the terms and conditions of employment in the service area should be guarded against infringements of individual rights in the contexts of recording devices, whether they be CCTV or sound recorders.

Tom

Lawstud · 11-01-2011 7:40pm

Hi was wondering if anyone is aware of any law on the issue of recording business meetings. Not company meeting like agms and such. Just business meetings between a business and a contractor.

Do the others in the room need to be made aware of the recording etc?

Thanks.

axiom · 17-01-2011 6:14pm

always wondered this myself after a taxi journey ...

through general chit chat it came about that the taxi driver had been accused of something which he said he never did, but found it very hard to prove it because it was only him and the other person in the taxi ...

however, after the incident he said he always had a dictaphone with a mic in the centre console of the car to record everything that was said ...

only knew he was recording after he said it ...

now I had no problem with it at all, but alway wondered the legal implications if someone was offended, or if it could be used in court if anythin ever happened in the car ....

MagicSean · 17-01-2011 6:38pm

Just out of interest, what if Gardaí were to be equipped with small cameras to record their interactions with the public? Would the law as it is allow this video to be used in a trial? Would it make a difference if the camera was concealed?

Tom Young · 17-01-2011 6:59pm

The aide memoire/s is something of a problem in this area. I think you might also consider that a notebook is something similar. If a Garda was to do this it might be capable of being classified as an aide memoire in a similar context to a notebook. The question really boils down to proper admissibility. There might be cover here in that categorisation.

Person to person recording would have to fall into the same/similar categorisation.

MagicSean · 03-05-2011 11:13am

Would probably fall under this

17.—(1) It shall be an offence for any person who, with a view to gain for himself or another or with intent to cause loss to another, makes any unwarranted demand with menaces.

(2) For the purposes of this section—

(a) a demand with menaces shall be unwarranted unless the person making it does so in the belief—

(i) that he has reasonable grounds for making the demand, and

(ii) that the use of the menaces is a proper means of reinforcing the demand;

(b) the nature of the act or omission demanded shall be immaterial and it shall also be immaterial whether or not the menaces relate to action to be taken by the person making the demand.

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both,

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or to both.

http://www.irishstatutebook.ie/1994/en/act/pub/0002/print.html#sec17

Tom Young · 03-05-2011 11:26am

I think the Non Fatal Offences also deals with this. Breach of Confidence is what you are referring to in the Civil context and (in what came as a surprise to me) this has been recognised by the Supreme Court.

NoAgenda · 21-01-2012 12:35pm

If a recording was made of a group of work employees making fun of another employee which was derogatory and included conversations that included making plans to deliberately interfere whit items belonging to said employee and plans to impose a "nickname" that was insulting to said employee what would the point of view on that.

PS: Management can not be approched as they can not be trusted.

PS.PS. I am asking in the context of proving a case of Bullying.

MagicSean · 21-01-2012 2:28pm

NoAgenda wrote: »

If a recording was made of a group of work employees making fun of another employee which was derogatory and included conversations that included making plans to deliberately interfere whit items belonging to said employee and plans to impose a "nickname" that was insulting to said employee what would the point of view on that.

PS: Management can not be approched as they can not be trusted.

PS.PS. I am asking in the context of proving a case of Bullying.

If an employee never approaches a member of management about bullying they would have a big problem in any case against the company, unless they could prove management were part of it.

As to the recording, if it is not in a public place I can see difficulty for the person who recorded it.

theAwakening · 21-01-2012 2:44pm

Tom Young wrote: »

The aide memoire/s is something of a problem in this area. I think you might also consider that a notebook is something similar. If a Garda was to do this it might be capable of being classified as an aide memoire in a similar context to a notebook. The question really boils down to proper admissibility. There might be cover here in that categorisation.

Person to person recording would have to fall into the same/similar categorisation.

Consider this scenario, which was used in a recent UK racially aggravated murder trial:

police have two co-suspects arrested and in custody, under caution, in the back of a police car. upon arrival at police station, the officers make their excuses exit the car briefly, leaving both co-suspects in the car , who of course use this time to concoct their defence, in doing so, admit the offence for which they are arrested. The police have left an audio recording device hidden in the vehicle, which records this conversation....

What issues would people see here regarding admissibility at trial. The authenticity of the recording itself can be proven by the police officer's evidence. the admissions were free & voluntary. If the suspect(s) incriminating comments are denied by him during subsequently police questioning when put to him, would the inculpatory oral statement made in the police car be an exception to the hearsay rule?

NoAgenda · 21-01-2012 3:38pm

MagicSean wrote: »

If an employee never approaches a member of management about bullying they would have a big problem in any case against the company, unless they could prove management were part of it.

As to the recording, if it is not in a public place I can see difficulty for the person who recorded it.

If the recording was made in the workplace, in an effort to prove the bullying given the burden of proof is difficult and the fact that most of the staff are conducting it, also what difficulty are you refering to?

Tom Young · 02-07-2012 9:08pm

Legal advice? Forum Charter.

Jellybeans1 · 11-07-2012 10:31pm

Is it legal to record someone who is recording you (but has told you they are ) without telling them

Brother Psychosis · 12-07-2012 6:00pm

i dont think this arises in a criminal context tho, say where someone intimidates a witness who has the presence of mind to record it. surely in that instance the recording would have to be admitted?

odds_on · 12-07-2012 6:41pm

Reloc8 wrote: »

Actually I would tend to view this as a breach of the particular person being recorded's right to privacy. A lot would also depend on the use to which the recording was being put, as regards who would be entitled to assert the breach.

Very interesting thread.
If the person being recorded during his employment, about that employment/service provided by that employee/business I do not see how the privacy of the employee is breached.
However, it would be different if someone recorded a conversation with an employee at his place of employment but the topic of discussion was a non-business related topic (and which the employee should not be discussing during his employment hours).

Just my simplistic non legal mind is thinking!

Jellybeans1 · 12-07-2012 9:01pm

I was speaking with someone from sky last night ,I was arguing over €100 engineers call out charge ,I told her I was recording the conversation ( I wasn't though) and she told me she didn't give her consent to use the recording ,she then hung up

Flaash11 · 27-01-2013 4:27pm

Is there a law to say you can't record a phone conversation with somebody who is causing problems. There also very abusive on the phone as well as sending nasty text messages. If you felt you needed to record a conversation each time you speak to this person because they continue to deny things. Can you use the phone conversation and text messages in court?

Procrastastudy · 27-01-2013 8:22pm

Flaash11 wrote: »

Is there a law to say you can't record a phone conversation with somebody who is causing problems. There also very abusive on the phone as well as sending nasty text messages. If you felt you needed to record a conversation each time you speak to this person because they continue to deny things. Can you use the phone conversation and text messages in court?

I'd stop speaking to them or if you really want to record them tell them you're doing it, I'm sure that would also have the net effect of getting rid of them.

Tom Young · 27-01-2013 8:23pm

Depends on context. Usually aides memoires are admitted with leave of the court. Particularly if prosecuting per Non-Fatal Offences Against the Person Act, 1997. Harrassment - S.10, etc.

Pat Mustard · 28-01-2013 12:36am

Tom Young wrote: »

Depends on context. Usually aides memoires are admitted with leave of the court. Particularly if prosecuting per Non-Fatal Offences Against the Person Act, 1997. Harrassment - S.10, etc.

Gardai refer to their notebooks as a matter of course with regard to nearly any charge.

Why do you say that this is particular to harassment?

brian ireland · 30-11-2013 5:34pm

If as a customer you are having a problem with a company call centre. Would be a problem to record the conversation if you believe you are getting the runaround.

Bepolite · 30-11-2013 6:09pm

brian ireland wrote: »

If as a customer you are having a problem with a company call centre. Would be a problem to record the conversation if you believe you are getting the runaround.

See post #2. It's not recording the conversation is what you can and can't do with it afterwards. Call centre calls are recorded anyway for the most part. (Kudos for actually using the search though!)

How effective recording a call and then using it as part of a complaint is debatable.

Smilerme · 13-04-2015 10:10pm

What is the situation where an employee is "ambushed" by an employer (ie no scheduled meeting, bosses just turn up unannounced) & the employee scenting something wrong records the meeting without advising the 3 bosses present of it? A termination deal is verbally agreed in the meeting.
The bosses are now denying the deal they made in that meeting and there are no minutes nor a written agreement. Is the recording admissible as evidence to prove the verbal contract?

endacreav · 13-05-2016 12:22pm

Hi, apologies if this has been answered previously.....

I recorded a conversation of my medical check up with the medical legal representing a firm I was taking to court.

the conversation was made using a mobile phone - in it the consultant can be heard clearly stating the reason I am in pain.

The defendants legal team came up with a defence that my pain was due to an unrelated event a year previous.

While I know it is a different type of case - there was a case recently where a jury were given access to a recording made during an assault.

My question, Can I use the recording in court, can I attempt to use it in court thus giving the defendants knowledge that I have it ? Should my solicitor/ Barrister tell the defendants that I have the recording.

Thanks,

Enda

Pat Mustard · 13-05-2016 12:54pm

endacreav wrote: »

My question, Can I use the recording in court, can I attempt to use it in court thus giving the defendants knowledge that I have it ? Should my solicitor/ Barrister tell the defendants that I have the recording.

Hi Enda,

This is a request for legal advice, which should be directed to your own legal team. Legal advice is not allowed here, per forum charter and boards.ie rules.

Colostomy Bag · 16-06-2017 2:08pm

Just saw this thread and wanted to ask a question. I understand that a colleague of mine left his phone in the office earlier today and recorded me and another colleague without our consent. He then went to HR with this recording and appears to be making some sort of complaint about us. I don't even recall what was said in his absence, perhaps something about him going on smoke breaks all the time and being a lazy so and so - I guess this is immaterial.
My question is - if I am called into explain myself on Monday - based on this recording - am I entitled to say that this has been a breach of any of my pricacy rights etc?

Any advice on this would be most welcome.

CB

Recording a conversation without consent

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