Is it legal to record another person with the mobile phone on audio or video without their consent to collect evidence?
In a trial, as in a life dispute, it is about your word against mine … unless a recording proves otherwise. With a mobile phone in our pocket, (almost) all of us bring the possibility of recording, by voice or video, to anyone, whether or not they are aware that we are saving it for posterity.
But is it legal to do so? Can it serve as proof, especially if the other person is not conscious?
Let’s go by parts, because as almost always in law, there are many nuances that can define when it is legal and when not to make a recording and when, despite being legal, it may not be admitted as evidence.
What can I and what can I not record
The lawyer Felipe Fernando Mateo Bueno explains that We can record all that conversation in which we are part. Both in video and only in voice. Not only can we, but from the point of view of law it is legal. I mean, if you and I talk and I record you, that’s legal. Although I did not warn you.
One of the judgments of the Supreme Court, 3585/2016, confirms this. “The contribution to the process of recordings of private conversations made by one of its protagonists do not violate the right to confidentiality of communications, since this right cannot be used in front of the participants themselves in the conversation ”.
You can record any conversation in which you participate, but that does not mean that you can reveal its content
What we cannot do, unless we have judicial authorization to do so, is record conversations of others. I mean, if you talk to a friend and I record you, that’s illegal.
It should be noted that only a judge can authorize a recording of someone else’s conversation; in fact “when the police want to record people they are investigating, they need judicial authorization; when it is recorded without judicial authorization, the evidence is useless and a crime can also be committed ”.
In this same sense, the lawyer Celsa Núñez from ICN Legal, recalls that recording an alien conversation without authorization “may constitute a crime against privacy, typified in article 197.1 of our Penal Code, which punishes anyone who discovers secrets or violates the privacy of another with up to four years in prison ”.
What can I and what not to do with these recordings
In mid-2018 there was a lot of controversy and commotion over the recordings that were released of Commissioner Villarejo with different public figures. Although this policeman had the right to record these conversations, something quite different is to make them known. Felipe Fernando Mateo explains that “if we spread our conversation, I may incur a crime of revealing secrets provided for and punished in articles 197 and following of the penal code ”.
If you spread that conversation, even if it is legal, you can commit a crime such as revealing secrets or an attack on privacy
In fact, this lawyer explains to us that these recordings are legal, because the commissioner was part of them. “What is not legal is the subsequent dissemination. That is why Baltasar Garzón has sued “against the media that have spread these conversations.
However, he clarifies that the person who committed a crime was not Villarejo, but “whoever disseminated the recordings” although the commissioner also “has been able to incur criminal liability, for having broadcast those conversations, but not for recording them.”
However, when we record (either only in sound or also with images) a conversation of which we are part, given that the law protects us, we can provide it as evidence in a judicial proceeding. Said recording is legal and, since if we record while being part of the conversation, we do not commit a crime, “it is not necessary for us to report that the conversation is going to be recorded.”
Another more recent case was that of Elena Cañizares, where screenshots of a discussion with roommates were published on Twitter, revealing multiple data. Information that, in the opinion of the lawyer Ofelia Tejerina, supposed identifiable data and therefore subject to be protected by the Data Protection Law.
What if I record the confession?
Is any type of recording worth it? Not really. Let’s imagine that someone confesses to us a crime and we have the conversation recorded. Could we use it as evidence? If the confession is spontaneous, yes. If we have prepared everything so that the other person ends up confessing their responsibility, no.
In fact, in judgment 1066/2009 of the Supreme Court, an accused of sexual abuse is acquitted for a similar situation, since the Court understands that that recording violates the right of every person not to testify against himself.
Thus, in said sentence it can be read that “regarding the legitimacy of the recordings of private conversations between two people made by one of them without the knowledge or consent of the other party, that the recording by one of the interlocutors of conversations between individuals can have an initial legality if the meeting is voluntary and free. The question varies when the recorded person, in some way, has been led to the meeting using tricks with the premeditated pretense of making him manifest facts that could be used against him. For its validity, it must be a freely arranged meeting between the two and that the appointment be attended spontaneously and without conditions of any kind ”.
If you record a confession, the court may not admit the evidence, considering that you have incited that confession
In other words, the resolutions issued by the Constitutional Court and the Supreme Court value that spontaneity and good faith are conditioning requirements for these recordings to be accepted. “When you force yourself and provoke a conversation it is no longer possible to place yourself on the same plane,” concludes the sentence.
Celsa Núñez remarks that although the recording in which “the very fact of the commission of a crime is recorded can be used, If the recording of the investigated party contains self-incriminating statements, it is not considered a confession, but will serve as a mere “notitia criminis”. That is, this recording can serve as evidence to initiate criminal proceedings, as well as a complaint, complaint or police report but not to determine the guilty of that crime or offense.
When the one who records is a minor
What happens when there are minors involved? It is not the first time that the news has jumped to the media that one of the parents has recorded the alleged abuse of the other parent to a child. Or in cases of cyberbullying.
Felipe Fernando Mateo Bueno assures that, when issues such as bullying occur, “there are parents who put tape recorders on their children” to collect this evidence. Nevertheless, In his opinion, this recording is illegal “because conversations of others are being recorded in which the parents are not a party, therefore they cannot be used in a judicial proceeding ”, he explains.
Although, as we can see, some criteria on the validity or not of a voice and / or video recording may seem clear, others lend themselves to a more open interpretation. “Regardless of the validity or nullity of the test, The methods by which it has been obtained will affect the assessment made by the Court or Tribunal”, Explains Celsa Núñez.
Furthermore, this lawyer considers that who carries a tape recorder “in a way is wanting the other person to say things that bring the ember to his sardine; although it is also true that, for example, today almost all cell phones give us the opportunity to record voice and most of us carry a cell phone practically all the time ”.
Without reaching such extreme cases, the lawyer Felipe Fernando Mateo recommends to all his clients immersed in conflictive couple breakups that they get a tape recorder and carry it with them in all deliveries and collections of their children, as well as that they settle in their mobile one of the existing applications to record calls. “In this way, if one day they are accused of having said or done something in a delivery or collection of the children or in a telephone conversation, it can be easily demonstrated what really happened”, He argues.
To be clear
So, if you plan to record any type of conversation, you should bear in mind that: