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Covert Recordings and the Ability to Rely on Them

The recording of meetings and conversations is an ability all people have, and it can be done at any time covertly and overtly.

However, the ability to rely on this information for your records is not straightforward. The recording in certain situations may be illegal depending on the nature of the information and the circumstances it was obtained.

Any business can covertly record face to face meetings, there is no statute prohibiting this. Regulation of Investigatory Powers Act 2000, an act I am all too familiar with due to my past in criminal defence -regulates covert recordings made by public bodies such as the police and other public authorities.

An individual may record a face to face meeting (with no employment relationship) but it could be difficult to use the recording as the other party could argue disclosure of the recording would be a breach of one of the following:

The Human Rights Act
• Under Art.8 of ECHR everyone has a right to respect for their private and family life. It would need to be considered if the content of the recording is private. This would be determined on a case by case basis – with a subjective approach – whether the disclosure of the recording would cause substantial offence to a person of ordinary sensibilities placed in similar circumstances to the individual. If this is yes, then it is likely the recording cannot be used and should be kept private.

Confidentiality
• Similar to the above, this would depend on the facts of the case but in determining a breach of confidence, the information must be:
– Confidential in nature e.g. the secret recipe for a brandy
– Communicated in circumstances where confidence would be expected;
– Disclosed in a way which would be harmful to the party providing the information.

Data protection legislation:
• Under art. 2 of GDPR, there is an exemption which allows the processing of personal data by an individual “in the course of a purely personal or household activity.” This exemption also applies to Data Protection Act because it runs alongside the GDPR. The Information Commissioner’s Office may still be able to investigate to see if the processing is purely domestic. The exemption is based on the purposes of the recording and its benefit can only be claimed by an individual or groups of individuals. The Data Protection Act and GDPR will not apply where the use has no connection to a professional or commercial activity.

• If an individual discloses a recording to a third-party business, the business would not be able to benefit from the exemption and will have to comply with GDPR and DPA. However, a company director may record a meeting with a company representative if he has a dispute with the company as discussing his position as director is a “personal activity”. This provides a significant advantage to a company director in keeping records for his personal use and for any future disputes they may have.
The Use of a recording in court

The use of a recording as evidence may be inadmissible in court for having an adverse effect on the fairness of proceeding. Under 32.1(2) – the court may use its power under this rule to exclude evidence that would otherwise be admissible.”

A court may use CPR31.1(2) – to exclude evidence that has been obtained illegally or improperly e.g. the evidence obtained was in breach of one of the above and also includes evidence obtained covertly or without consent. The court will determine admissibility on a case by case basis. In Jones v University of Warwick – the court did not exclude the evidence even though the recording was obtained after deceiving the claimant into letting them in to their home. However, the court still penalised the defendant by ordering them to pay a significant portion of the claimant’s legal fees. Similarly, in Mustard v Flower – the court allowed the claimant in a personal injury claim to rely on covert recordings made of the defendant’s expert witnesses. The evidence was relevant and probative and outweighed the morale issues of how it was obtained.

My View

A covertly recorded meeting remains the proverbial ace in the hole evidence wise for proceedings. However, it can only be deployed if care has been taken regarding the nature of the information and the circumstances the information was obtained. The recording may be very helpful in a matter but any user should be aware that it could lead to penalisation via costs, inadmissibility in court and in the long run damage to their reputation.

If you would like to discuss anything relating to this article, please contact Raphael Steele at [email protected]

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