20 February 2012

The Legality of Recording Telephonic Conversations

    This post is from a series of posts dealing with basic Indian content laws. Other posts from the series can be accessed at Content101.

Recorded conversations are treated in different ways by the law depending on how the recording is obtained. Tape recordings of conversations have repeatedly been held to be admissible as evidence by courts. However, this does not automatically make telephone tapping and the recording of telephonic conversations legal.

Telephone tapping is, of course, subject to its own laws:
  • Section 5(2) of the Indian Telegraph Act, 1885, which grants the Government the power to order the interception of messages;
  • Rule 419A of the Indian Telegraph Rules, 1951, which lays down the procedural requirements which must be followed for telephone tapping to be legal;
  • Section 69 of the Information Technology Act, 2000, which deals with the power to issue directions for interception or monitoring or decryption of any information through any computer resource;
  • Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009.
Under these laws, the tapping of telephones by third parties is generally illegal, unless the procedures mandated by law are followed. Pertinently, it is possible to interpret the law to mean that tapping would be illegal even is the person whose telephone is tapped consents to the tapping.

Further, even in the case of 'consensual tapping' — which is, in all probability, illegal — privacy implications may arise. This is because when a telephone is tapped, the conversations of the person whose telephone is tapped with other people would be recorded, and those other people would presumably not have given their consent to being recorded.
If, however, the tapping of a telephone was legal, privacy implications giving rise to liability would not be an issue.

Privacy Concerns

Recording telephonic conversations — including one’s own conversations — however, is a completely different ball game, and the law is not crystal clear.

The primary legal impediment relating to the recording of telephonic conversations is the likelihood of privacy concerns arising where the recording is executed without the consent of those participating in the conversation. In general terms, the Right to Privacy has been recognised under both law and self-regulatory mechanisms including:
  1. Tort law,
  2. Article 21 of the Constitution of India which deals with the ‘Protection of Life and Personal Liberty’,
  3. Depending on the technology used, the Information Technology Act — under Section 66E as well as (depending on the content of the conversations) Section 43A along with the associated 2011 Privacy Rules),
  4. (Possibly, for women) under Section 509 of the Indian Penal Code, and
  5. With regard to television programmes, the Indian Broadcasting Foundation’s Content Code & Certification Rules 2011.
What is clear (relying on PUCL v. Union of India, 1997, AIR1997SC568) is that telephonic conversations are an important part of a person's private life, and people do have a right to hold private conversations in the privacy of their homes or offices.

Due to this, any surreptitious, non-consensual recording of a telephonic conversation may have implications relating to privacy. However, reading through case law (relating to the use of hidden cameras and other recording devices), it emerges that there is no absolute bar on surreptitious recording in general. If one were to stretch the rationale underlying the conclusions courts have reached with relation to the use of hidden cameras, it could be argued that the recording of a telephonic conversation (with consent from at least one party, at any rate) is permissible. Further, if public interest were to a part of the equation, depending on the technology used, recording a telephonic conversation without the consent of any of its participants may be legal.

For example, if one were to consider sting operations: the High Court of Delhi remarked in Court on its Own Motion v. State & Ors. (2009CriLJ677) that ‘a sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilized society,’ and ‘normally, if a private person or agency unilaterally conducts a sting operation, it would be violating the privacy of another person and would make itself liable for action at law.’

Nonetheless, it appears that in practice, courts adopt an approach where they weigh public interest against the right to privacy. In Court on its Own Motion v. State, 146(2008)DLT429, it was held that: ‘Sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person.’

Further, as far as television broadcasting concerned, Theme 6 in Chapter 3 of the Indian Broadcasting Foundation’s Content Code & Certification Rules 2011 prohibits the broadcast of certain private information unless the invasion of privacy is warranted. The terms “warranted” and “identifiable larger public interest” have both been defined in the IBF Content Code as follows: 
“Warranted” means that where broadcasters wish to justify an infringement of privacy or the subject matter treatment or audio visual presentation of themes of identifiable larger public interest as warranted, they should be able to demonstrate why in the particular circumstances of the case, it is warranted. If the reason is that it is in identifiable larger public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy and /or does not violate any of the provisions of the IBF Content Code and restrictions on subject matter treatment and audio visual presentation of themes under this Code.

“Identifiable larger public interest” shall mean the subject matter treatment or audio visual presentation of themes relating to social evils, gender or caste based issues, criminal or disreputable behavior, protecting public health or safety; exposing misleading claims made by individuals or organizations; or depicting significant incompetence or corruption in public office for the larger public interest.
As such, it is clear that there is a public interest angle at play, and no absolute bar against the invasion of a person's privacy exists as far as television broadcasting is concerned.

The Recording of Telephonic Conversations

As mentioned earlier, statutory law does not clearly state in what circumstances telephonic conversations may be recorded. Focussing on the recording of telephonic conversations (to the exclusion of the legality of using hidden cameras): the subject may be considered under three broad heads:
  • Where all the parties to a telephonic conversation consent to its being recorded;
  • Where one of the parties consents to its being recorded; and
  • Where none of the parties consents to its being recorded.
In the first case, if all the parties to a telephonic conversation consent to its being recorded, there are, obviously no real issues as far as the violation of the privacy of the participants was concerned. ‘Consent’ would be an extremely strong (though not an unassailable) defence should any of the parties later claim that their right to privacy was violated.

In the second case, if a telephonic conversation was unilaterally recorded by one of its participant (or, possibly, with their consent) without obtaining the consent of the other(s), it is possible that the non-consenting party/parties could claim that their right to privacy was violated. It is doubtful that such a claim would be successful if the recording were executed by one of the parties to the conversation as there appears to be no legal bar on recording one’s own conversations. If, however, the recording was executed through a third party, it is possible that the party/parties who did not consent to the recording of the conversation would have a stronger claim that their privacy had been violated, as the mere act of recording would presumably amount to the disclosure of the content of the conversation to a person who was not a party to it. The law is, however, does not provide a clear answer.

Finally, in the third case, if none of the parties to a telephonic conversation consented to its being recorded, in all probability, unless the recording was by way of a legal telephone tap, all the parties to the conversation could claim that their privacy had been violated. Pertinently, the ruling of the Andhra Pradesh High Court in the case of Rayala M. Bhuvaneswari vs Nagaphanender Rayala on 20 December, 2007, AIR 2008 AP 98, appears to indicate that recording telephonic conversations one is not a party to is illegal. (Pertinently, in this case, the court referred to American law where, in many states, unilateral consent makes the recording of a telephonic conversation legal.)

Nonetheless, even if consent is not obtained from any party, assuming that the recording is not by way of an illegal telephone tap, it may be possible to defend the invasion of privacy on grounds of public interest, in some circumstances, using arguments which demonstrate the public interest supercedes the right to privacy.
 
 
(This post is by Nandita Saikia and was first published at Indian Copyright.  It is extremely speculative in places, and like all the other posts in this blog, it does not constitute legal advice.)

No comments:

Post a Comment

Credit

This site is supported by FrontierNxt.