It seems that we’re heavily influenced by films, where in most cases, a “court order” is required. It is true that a court order is a requirement to record people, but it isn’t always essential. You can’t tap a phone without a court order, in addition to the fact that it must be done by law enforcement, nor can you put a microphone in a room; but it’s a different story if you record someone who is talking to you in person. It is therefore essential to make an initial distinction between recordings made by one of the people involved in the conversation, and recordings made by third parties external to the conversation.
In regards to the evidentiary validity of recordings between individuals, the Criminal Chamber of the Supreme Court has ruled on this matter several times, most recently on July 15, 2016 (STS 3585/2016). We can say that jurisprudence is agreeable at least at one end of the spectrum, since recordings of private conversations made by one of the people involved can be presented at trial.
On the other hand, only law enforcement, by means of a court order, may record the conversations of third parties. If this same action is taken by an individual, it may constitute a privacy offense, criminalized in article 197.1 of our criminal code, which punishes anyone who “to discover secrets or violate another’s privacy, without their consent (...) intercepts their telecommunications or uses devices for listening, transmitting, recording or reproducing sound or images, or any other communications signals” with up to four years in prison.
It follows from this that secrecy and privacy are the main elements to consider in terms of recordings.
Regarding secrecy, in judgment 114/1984 of 29 November, the Constitutional Court established that “there is no secrecy for the one to whom the communication is directed”. Yet in the same judgment, the High Court clarified that the dissemination of recordings could in fact jeopardize the right to privacy. To do so, the content of the conversation would have to affect the essential core of the right to privacy, be it in a personal or family context. Where you are talking is also relevant; is it a shop or an office? Are you talking on the street? The judge will be hard-pressed to consider that in this case it is a violation of privacy, since the affected person must do everything possible to safeguard it.
It is important to point out an issue that can also come to light upon providing a recording as evidence, which is that the right against self-incrimination and the presumption of innocence could be affected. In this case, the statements of the other participants in the conversation regarding the defendant’s statements are generally taken into consideration as hearsay evidence. Thus, while a recording which records the very fact of committing a crime can be used, a recording of the defendant as an interlocutor, as long as it contains self-incriminating statements of previous events, will not be considered a confession, but instead serve as a mere notitia criminis (notice that a crime is alleged to have occurred).
Finally, as far as the recording is concerned, there is the case of whether the statements of the interlocutor, or the conversation itself, are produced by means of deception or are sought after by the person who intends to record it.
Once again, we must determine whether the recording is made by individuals or law enforcement. In the case of individuals, this “provocation” is not an obstacle to the admission of evidence, although we must once again consider the previous point regarding self-incriminating statements.
However, recordings made by law enforcement which seek an extrajudicial “confession” by means of deception and from a position of institutional superiority receive different treatment. In the latter case, the doctrine of the European Court of Human Rights leads us to analyze the nature and extent of the compulsion used to obtain the evidence, the weight of the public interest in the investigation, and the punishment for the crime in question. It is in this case that the constitutional right against self-incrimination can be violated, which would result in the invalidity of the evidence. In addition, depending on the subject matter, we would be walking the fine line which sometimes separates the activity of an undercover agent or agent provocateur from the crime provoked.
Although some criteria are clear, others lend themselves to a more open interpretation, and apart from the validity or invalidity of the evidence, the methods by which it has been obtained will affect its assessment by the court. What is true is that whoever carries a recorder is to a certain extent hoping that the other person will say things to tip the scales in their favor; although it’s also true that nowadays most mobile phones offer the opportunity to make voice recordings, and most of us practically always carry a mobile phone with us.
Managing Partner at ICN LEGAL