Secret Recording as Evidence in Court?

Secretly made recordings are often decisive evidence in court proceedings. At the same time, however, they may interfere with the privacy and personality rights of the individuals being recorded. When can such recordings be used as evidence, and when are they inadmissible?

“I secretly recorded my manager shouting at me and humiliating me at work.”

“I recorded a telephone conversation with my landlord in which he admitted that the real reason for terminating my lease was not that he needed the apartment for his own housing, but that it would be easier to sell the apartment this way.”

Can such audio or video recordings be used as evidence in court proceedings?

What does the law say?

Making and using audio or visual recordings of another person without their consent constitutes an interference with that person's privacy and, therefore, with their personality rights.

No one may interfere with another person's privacy without a lawful reason.

There are, however, certain exceptions to this rule. One of them is the making and use of recordings for the exercise or protection of rights or legally protected interests of the person making the recording or of third parties.

It should nevertheless be borne in mind that even where the law permits the making and use of such recordings, they must not be used in a disproportionate manner contrary to the legitimate interests of the recorded individual.

As a general rule, therefore, it is not permissible to record or photograph another person and use such material without their consent. Under exceptional circumstances, however, this may be justified. One such circumstance is the protection of one's rights and legally protected interests.

Can I use a recording as evidence in court?

Case law on this issue continues to evolve.

Whereas courts previously tended to regard evidence obtained through interference with another person's rights as unlawful and therefore inadmissible, the current approach is different.

According to contemporary case law, an audio or visual recording relating to a person or to manifestations of their private life, made by a private individual without the knowledge and consent of the recorded person, may be admissible as evidence in civil proceedings under certain conditions.

Such evidence may be admitted only where:

• it is capable of proving a decisive fact that cannot be established by other means; and
• the interest in allowing the evidence outweighs the interest in protecting the personality rights of the recorded person.

In other words, the circumstances of the case must justify giving priority to the right to a fair trial over the personality rights of the individual captured in the recording.

Examples from case law

Recording of an employee blackmailing the employer

An employee was dismissed on grounds of redundancy.

During the notice period, he attempted to blackmail his superiors, threatening to initiate legal proceedings against the employer that would cause financial harm and jeopardise the employer's ability to obtain an important subsidy unless he was offered a different position within the company.

The individuals acting on behalf of the employer recorded these conversations.

As a result, the employer served the employee with a notice of immediate termination of employment.

The employee challenged both the redundancy dismissal and the immediate termination before the courts.

When it came to proving the employee's gross breach of duties, the employee argued that the recording was inadmissible because it had been made without his consent.

The case ultimately reached the Czech Supreme Court, which applied a proportionality test. It balanced the employee's right to privacy against the employer's right to a fair trial.

The Court held that evidence obtained unlawfully may be admitted only where the relevant fact cannot be proven by other evidence that does not interfere with the recorded person's fundamental rights.

In this case, the alleged blackmail could have been proven through witness testimony from those present during the conversations. Consequently, the recording was not admitted.

Recording used to prove the true reason for dismissal

The opposite conclusion was reached in a dispute concerning the validity of a redundancy dismissal.

The employee sought to prove that the real reason for the dismissal was not the employer's alleged organisational restructuring, but criticism directed at the employee by a superior.

There was no other direct evidence capable of proving the employee's allegation.

The admission of the recording was further justified by the need to protect the employee as the weaker party in the employment relationship and by the serious consequences associated with losing employment.

The recording was therefore admitted as evidence.

Recording telephone conversations

The courts have also concluded that where person A telephones person B and person B records the call, the recording may be admissible as evidence provided that person A has not expressed disagreement with the recording.

The caller does not need to be specifically informed that the conversation is being recorded.

By initiating the call, the caller enters the recipient's private sphere and must accept the consequences associated with that communication.

Given the widespread availability of technology capable of recording telephone calls, courts have held that the caller's tacit consent to the possibility of recording may be inferred unless the caller expressly objects.

A recording made by the recipient of a telephone call may therefore be admissible as evidence.

Recordings of business discussions

In another case, the courts considered a recording of a conversation among several shareholders of a company who disagreed about a proposed business transaction.

The courts concluded that the recorded statements were not of a personal nature. Rather, they related to business activities and commercial decision-making.

The making and use of the recording therefore did not interfere with the personality rights of the individuals concerned.

The recording was therefore admissible as evidence.

Conclusion

In some cases, an audio or video recording made without the consent of the recorded person may be admissible evidence in civil proceedings. In other cases, it may not.

The outcome will generally depend on the following factors:

• Whether the recording captures a manifestation of private life. If it does, additional conditions must be satisfied. If the recording concerns professional, commercial, or public activities, it will generally be admissible.
• Whether the recording is necessary to prove an important fact. The evidence should not be admitted where the same fact can be established by other means that do not interfere with another person's rights.
• Whether the interest in admitting the recording outweighs the interest in protecting the personality rights of the recorded person.

Let us return to the examples from the beginning of this article:

1. “I secretly recorded my manager shouting at me and humiliating me at work.”
2. “I recorded a telephone conversation with my landlord in which he admitted that the real reason for terminating my lease was not that he needed the apartment for his own housing, but that it would be easier to sell the apartment this way.”

Assume that the recordings are intended to be used:

1. in proceedings seeking compensation for non-material harm resulting from an infringement of the employee's personality rights; and
2. in proceedings challenging the validity of the lease termination.

In our view, provided there is no other way to prove the relevant facts, such recordings may be admissible as evidence.