How recorded private calls can easily land you into trouble

There are legal and constitutional implications of secretly recording private conversations.[Courtesy]

In an age where almost every smartphone is also a recording studio, the line between documenting a conversation and secretly capturing another person’s private life has become increasingly blurred. Across social media, Kenyans have become accustomed to leaked voice notes, private chats, telephone conversations and recordings of intimate disputes appearing online. What may begin as a disagreement between lovers, spouses, friends, business partners or colleagues can quickly become public entertainment. But behind the viral clips lies a serious legal problem, does having access to someone’s private conversation give you the right to secretly record, retain, publish or later use it against them in court?

The answer is not as simple as “I recorded it, therefore I can use it” once I have put in a certificate of electronic evidence as per the evidence Act. The Constitution protects the right to privacy under Article 31, including the privacy of communications. That protection does not disappear because two people are dating, married, conducting business together or have previously exchanged private messages.

Intimacy is never a waiver of constitutional privacy. This is particularly important for lovers. A romantic relationship does not create a licence for one partner to secretly record the other, download private conversations from a phone, access private chats or preserve intimate communications for possible use in future litigation. A relationship may create circumstances in which information is voluntarily shared, but that is different from giving unlimited consent to surveillance or subsequent disclosure.

The Constitution also provides an important safeguard concerning evidence. Article 50(4) provides that evidence obtained in a manner that violates a right or fundamental freedom in the Bill of Rights should be excluded where its admission would render the trial unfair or would otherwise be detrimental to the administration of justice. That provision should not, however, be misrepresented as an automatic rule that every secretly recorded conversation is inadmissible in every civil case.

Courts must examine the circumstances, the right allegedly violated, the manner in which the material was obtained and the consequences of admitting it. The important point is that illegally or improperly obtained evidence does not acquire automatic legitimacy merely because somebody believes it is useful to their case. There is another layer to this issue within the Data Protection Act of 2019. Section 28 primarily addresses collection of personal data directly from a data subject, while the consent provisions are principally found in sections 30 and 31.

The Act establishes requirements concerning lawful processing, consent, transparency and the rights of data subjects. A person’s voice, private communications and information contained in private correspondence can raise significant data-protection questions depending on the circumstances in which they are collected and processed.

Consequently, someone who secretly records a private conversation cannot simply assume that ‘consent’ exists because they were one of the people participating in the conversation. Participation in a conversation and consent to a particular form of recording, storage, disclosure or subsequent processing are not necessarily the same thing.

The same warning should extend to companies. Customer-care departments frequently use messages such as, “this call may be recorded for quality assurance purposes”. That notice serves a legal reason. Organisations processing personal data must take seriously their obligations concerning transparency, lawful processing and informing data subjects. Where a recording is being made, customers should not be left to discover the fact later when a recording resurfaces in a dispute, disciplinary process or court proceeding.

Businesses should therefore ensure that their call-recording practices have a proper legal basis and that customers receive appropriate information about the recording and its purpose. A generic practice of secretly recording communications should not be treated as automatically lawful simply because it is common in the industry. The consequences extend a bad customer taste; it carries the weight of the law. Secretly obtained recordings can expose individuals and organisations to complaints, privacy claims, regulatory scrutiny and other legal consequences, particularly where recordings are subsequently circulated beyond the purpose for which information was originally obtained.

There is also a basic ethical principle that social media has increasingly forgotten, private information does not become public property merely because someone possesses it. A lover who secretly records a partner, an employee who records a colleague, or a company that records customers without appropriate notice should not assume that possession equals permission. Nor should a litigant assume that evidence obtained through a violation of another person’s rights will necessarily be welcomed by a court. The law therefore demands greater discipline in the smartphone era. Before pressing ‘record button’, ask what right you have to capture the communication, what legal basis permits the recording, whether the other person has been appropriately informed, how the recording will be stored and what you intend to do with it.

And before presenting a secretly obtained recording in court, obtain legal advice rather than assuming that its evidential value overrides the manner in which it was obtained. The fact that technology makes secret recording easy does not make it lawful. Privacy survives the relationship, survives the smartphone and, in appropriate circumstances, survives the attempt to turn a private conversation into courtroom evidence.

In the digital age, privacy remains a right jealously protected by the Constitution as some “sacrosanct sphere of mankind”. Secret recordings should never be treated casually; legality, consent and fairness must always come first.