Recording official telephone conversations

[Ramesh Roy]

Dear Dr. Dhamija. Hats off on your various answers in this forum.

Just wanted to know that if a person A, without the knowledge and consent of the other party B speaking on the fixed line telephone, records conversations during official hours inside the office premises about official matters through the official telephone so as to keep recorded evidence of conversations between A and B so that later there is no false allegations or denials against A, then can this act of recording be considered as legal? Mr. A is afraid of conspiracy against him and so he is secretly recording conversations as a means of future protection to prove his innocence if required.

Please help me with your answer.

Regards and thanks,
Ramesh Roy

[Dr. Ashok Dhamija]

Recording telephone conversations can basically be of three types:

(1) Conversation is recorded with consent of both parties to the conversation.

(2) Conversion is recorded by one party without the consent of the second party to the conversation.

(3) Conversation is recorded by a third party without the consent of both parties to the conversation.

Law is not fully clear on recording of telephone conversations. There is no specific legal provision that permits recording of such conversations, except interception of phone conversations by or under orders of the authority empowered to do so under Section 5(2) of the Telegraph Act, 1885, and/or under Section 69 of the Information Technology Act, 2000. However, these provisions basically cover recording of conversations in the third category mentioned above, where an official agency (such as a police agency) with specific orders of the competent authority intercepts and records the conversations of third parties.

There is no specific legal provision permitting recording of conversations in the first two categories mentioned above. At the same time, there does not appear to be a specific bar also. Of course, there are privacy issues when you record the conversation of another person. Please note that right to privacy has been recognized as a fundamental right under Article 21 of the Constitution of India.

With these caveats in place, let’s discuss the three categories described above.

In the first category, since both parties are consenting to recording of their own conversation, there should not be any privacy concern. The intention may be to keep record. It is like preparing minutes of a meeting. There may not be anything illegal in such recording.

In the second category, one party is unilaterally recording the telephone conversation without the knowledge and consent of the other party to the conversation. This may have privacy concerns of the second party. There may not be any specific legal provision authorizing such recording. At the same time, there does not appear to be a specific legal bar if one records one’s own conversation with another person, without eavesdropping on any third party or without implanting any spy gadgets on the phone device of the other party or without hacking into any outside network. It is like a photograph of an event which is used in future to refresh the memory. Once the second party is talking to you on phone, it is quite obvious that you would know what is spoken by him. In fact, this is the very purpose of conversation. Now, you can remember that conversation in your memory, and most people will in fact remember, though not fully or verbatim. You can also prepare written notes of the conversation subsequently, though again the same may not be verbatim. By recording the conversation, what you are doing is to record it verbatim and fully. Such conversation belongs to both parties. It is as much yours as it is of the second party. Therefore, the law must not come in the way of your recording your own conversation with another person, if it is done in a bona fide manner to protect your own interests in future by keeping a record thereof, and not for any other ulterior purpose such as defamation or blackmail. However, this conversation should not be recorded with the help of a third party, who gets knowledge of the conversation since in that case the privacy issue may become relevant. Likewise, you should not make the conversation available to third parties, in order to take care of the privacy concerns. However, if needed in future, producing the conversation before a court or a tribunal or some other legal authority would be a different matter if such production is to defend your own rights vis-à-vis the other party to the conversation (this is similar to other private documents being produced in courts when one has to defend oneself). It appears that your question related to this second category.

In the third category, recording of phone conversations is illegal, except where it is done by or under orders of the authority empowered to do so under Section 5(2) of the Telegraph Act, 1885, and/or under Section 69 of the Information Technology Act, 2000. Such recording cannot be done by private persons. For example, in the case of Rayala M. Bhuvaneswari v. Nagaphanender Rayala, AIR 2008 AP 98, 2008 (2) ALD 311, 2008 (1) ALT 613, the Andhra Pradesh high court held that recording by a husband of the conversation of his wife with others (such as her parents) was illegal and it infringed the right of privacy of the wife.

It may not be out of place to point out that secretly recorded telephone conversations have been allowed to be admitted in evidence, subject to certain safeguards, in certain cases decided by the Supreme Court, starting with the case of R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 : AIR 1973 SC 157 : 1973 Cri LJ 228.

Since the law does not specifically permit recording of phone conversations, my opinion should not be construed as an advice to record the phone conversations. I have merely tried to explain the legal position in a pro bono manner. Though I believe my opinion reflects the correct legal position, it may not necessarily be so in view of the fact that the law on these issues in unclear and the courts may take a different opinion. Therefore, you should do it at your own risk.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Anonymous]

What about clandestine recording of video? Video can be recorded by CCTV of any premises openly. In which case, the consent of the visitor is implied. But when clandestinely recorded, apart from moral angle, what are the legal provisions?

[Dr. Ashok Dhamija]

Generally speaking, recording clandestine video may be violation of privacy. In fact, even CCTV at public places may perhaps be invasion of privacy. In such cases, at least, a public notice needs to be displayed informing that “You are under CCTV watch” or something similar. I am not aware of any law that permits CCTV. Even public authorities (such as police) use CCTV. Video recording a meeting without knowledge or consent of other participants may also perhaps be violation of privacy. Sting operations conducted by media and private persons also come in this category. There may also be a rival claim in some situations. For example, if I use CCTV in my office, I may claim that it is my property and I have every right to do it within my premises. But, at the same time, it is generally desirable that a notice needs to be put so that nobody is taken by surprise.

It is pertinent to point out that in the case of “Court on its Own Motion v. State & Ors.”, 2009 Cri LJ 677, the Delhi High Court had observed that a sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilized society, and that 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.

However, sometimes the courts give more importance to public interest against the right to privacy. In Court on its Own Motion v. State, 146 (2008) DLT 429, it was held by Delhi high court 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.”

It may also be relevant to point out that Indian Broadcasting Foundation’s Content Code & Certification Rules 2011 prohibit the broadcast of certain private information unless the invasion of privacy is warranted in the “identifiable larger public interest”.

In brief, law on these issues in not well established and is not clear. There is no legislation on these issues. But, generally, it appears that where larger public interest overweighs the privacy concerns, such video recording can be done, e.g., CCTV at public places.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Ramesh Roy]

Dear Dr. Dhamija Sir,

I will call you as “Sir” because your explanation and answer in reply #369 and #375 is par excellence and in a single straight forward write-up you have cleared the entire matter most beautifully and legally.

Please accept my heartfelt gratitude and thanks. It was truly a wonderful experience getting enlightened by you.

Thank you once again.

Regards and thanks,
Ramesh Roy

[Author]

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