We have all heard the pre-recorded statement that the telephone call will be used for quality and training purposes. But what if that warning is not played, and what can they, or someone else, do with the recording?
And what about that recording button on your mobile phone. Can you record a conversation with someone and use it against them?
This short article generally explores the privacy rights around recorded phone calls, and the uses of the recording as evidence in Court proceedings.
It all begins in the Invasion of Privacy Act 1971 as to whether recording of a conversation is legal.
There is no offence if the recording is of a telephone conversation to which you are a party, or your recording unintentionally picks up another conversation that you are not a part of – some of you might have seen the episode of Suits where Samantha uses Alex’s daughter to ‘accidentally’ record a conversation to then be used in a deposition. Although it might have worked in Suits, this does not work in real life. This would in fact be a breach of the Invasion of Privacy Act 1971.
So, recording a conversation to which you are a part of is not illegal.
The next question is whether you can use that recording as evidence for whatever reason? Maybe you want to record your ex in a family law dispute? Maybe you want to record a witness in an injury claim?
The Invasion of Privacy Act 1971 provides that it is an offence to communicate or publish that recording, or a report of the recording, of the private conversation. The penalty is imprisonment of up to 2 years or a fine of up to $5,222.00.
However, you can use the recording if the other party to the conversation gives their consent, whether it is expressly given (ie they say they agree to you communicating or publishing the phone call) or it is implied (when the pre-recorded statement says the telephone call will be used for quality and training purposes and you continue with the phone call anyway).
The use in legal proceedings is limited, and makes the recording inadmissible as evidence in civil or criminal proceedings unless consent is given to use the recording.
So what can you do with the recording if you can’t use it as evidence? Perhaps you can produce a diary note of the conversation from the recording. Perhaps you can produce an affidavit as to what was discussed in the conversation from the recording. In either case, the document might put you in breach of the Invasion of Privacy Act 1971 by producing a report of the recording.
It appears at this stage the extent of which you can use a telephone call recording without consent is yet to be truly tested in the Court.
In the example of an injury claim where you are recording a witness, do you need to disclose the recording or written record of the recording? Setting aside the issue of whether it is legal to communicate or publish the phone call, we turn to the Uniform Civil Procedure Rules 1999. If you have the witnesses consent, you can obviously disclose the recording, or written record. If you don’t want to disclose it, rule 213 of those Rules allows you to claim privilege to the document.
There are three types of privilege that you can claim: advice privilege, litigation privilege and third party privilege.
Advice privilege applies where the communication in question was made for the purpose of giving or seeking legal advice. Advice privilege can also protect confidential communications between a client and third parties made for the dominant purpose of enabling the client to obtain legal advice – such as a Barrister.
Litigation privilege relates to documents brought into existence for the purpose of use in legal proceedings, or for obtaining or collecting evidence to be used in the legal proceedings. This includes statements of potential witnesses, and surveillance film taken for potential use in litigation.
It is important to note that if you were to claim privilege to a statement, that privilege is waived by conduct which is inconsistent with the maintenance of the privilege – such as discussing the contents of the privilege statement with a third party.
If you need any advice regarding recorded conversations, contact one of our lawyers on 13 58 28.