Recording a conversation without consent?
Audio and video recordings have become widely used tools, serving purposes that range from preserving personal memories to functioning as evidence in civil or criminal proceedings. However, the legality of recording a conversation without the consent of all parties involved raises significant concerns, particularly in light of evolving and often ambiguous legislation.
From a legal standpoint, it is crucial to understand that recording someone without their prior consent is not always permissible, and unauthorized recordings may lead to legal consequences.Learn more about:
When is recording without consent considered illegal?
In Romania, the legality of recording a conversation without the other party's consent is governed by multiple legal provisions, which vary depending on the specific context in which the recording takes place.
The Romanian Constitution safeguards the right to privacy, explicitly stating in Article 26:
Public authorities shall respect and protect private, family, and intimate life.
As such, any act of recording without the individual's consent may constitute a violation of this fundamental right.
Under criminal law, the Criminal Code clearly defines situations in which unauthorized recordings are deemed offenses. Article 226 penalizes the violation of privacy, including the recording or use of a conversation without the participants' consent if it infringes on their personal privacy. Nevertheless, exceptions exist, such as recordings made in the public interest or to protect a legitimate right.
Civil law also provides protections through the Civil Code, which addresses the rights to image and privacy. Unauthorized recordings can give rise to civil liability, enabling affected parties to seek compensation for moral or material damages.
In the workplace, labor legislation may influence the permissibility of recordings. For instance, employees may be recorded during their professional activities only if a legal basis or contractual provision permits it (template work contracts), and employers must adhere to data protection regulations.
While public spaces generally allow for more flexibility, recordings that capture private conversations without consent may still lead to legal consequences, particularly if they are used in a manner that harms an individual's reputation or invades their privacy.
The legality of recording depends on a thorough evaluation of the circumstances, including the location, purpose, and adherence to fundamental rights and applicable laws. In general, recording a person without their consent is unlawful in the following situations:
When conducted in a private setting: such as a residence, personal office, or any environment where the individual has a reasonable expectation of privacy.
When it targets private activities: such as personal conversations, intimate moments, or other non-public behaviors.
When it is intended to harm or compromise the recorded individual: for example, through blackmail, harassment, or other malicious purposes.
What does the Criminal Code provide?
Article 226 of the Criminal Code protects the right to privacy as follows:Unauthorized infringement of private life by photographing, capturing, or recording images, listening with technical means, or audio recording of a person in a residence, room, or adjacent premises, or of a private conversation, is punishable by imprisonment of one to six months or a fine.
Similarly, intercepting and recording telephone conversations or other forms of communication without the consent of the individual involved may constitute a criminal offense, punishable by imprisonment of three months to two years or a fine.
Through Decision No. 18/2024, the High Court of Cassation and Justice clarified that the terms "residence," "room," or "adjacent premises" under the offense of violation of private life hold the same meaning as those under the offense of trespassing, as provided in Article 224, paragraph (1) of the Criminal Code, being collectively subsumed under the concept of "domicile" in criminal law.
Specifically, the term "domicile" refers to the place where an individual establishes their permanent residence or regularly lives and exercises their rights and obligations. "Residence" includes any space effectively used for domestic purposes by one or more individuals, regardless of whether it is enclosed or partially open, mobile or fixed, designed specifically for this purpose or not, or whether it serves as a permanent or temporary dwelling. Examples include hotel rooms, ship cabins, apartment rooms, villa rooms, tents in resorts, sleeping car cabins, mobile barracks, dormitory rooms, or boarding school accommodations.
Additionally, the Criminal Code addresses other acts related to the violation of an individual's privacy:
Article 226, paragraph (2): The unauthorized disclosure, dissemination, presentation, or transmission of sounds, conversations, or images, as defined in paragraph (1), to another person or the public, is punishable by imprisonment of three months to two years or a fine.
Article 226, paragraph (21): The unauthorized disclosure, dissemination, presentation, or transmission, in any manner, of an intimate image of an identified or identifiable person, based on the provided information, in a way that causes psychological distress or damages their reputation, is punishable by imprisonment of six months to three years or a fine.
An "intimate image" is defined as any photograph or recording, regardless of format, depicting an individual naked or partially/fully exposing their genitals or, in the case of women, breasts, or engaging in a sexual act.
It is not necessary for the perpetrator to possess sounds, conversations, or images obtained illegally (through photography, capture, or audio/video recording) to be guilty of the offense of violating privacy. Violating privacy may constitute an offense even in the absence of recordings if the individual was listened to or filmed without consent in a private place, such as a residence or personal room. These conclusions were upheld in Decision No. 51/2021 of the High Court of Cassation and Justice.
Examples of offenses upheld by Romanian courts:
The act of defendant 1 sharing, without the victim's consent, an audio-video recording via WhatsApp to defendant 2, showing sexual relations with the victim, constitutes the offense of violating privacy (Brașov Court, criminal sentence no. 701/18.04.2018, www.legal-land.ro).
Installing a GPS tracking device on the victim's car (the defendant's former partner) to monitor her movements could constitute an attack on her private life, though not criminally incriminated in this form (ICCJ, criminal section, Decision no. 18/25.01.2018, www.legal-land.ro).
Posting nude photographs of the victim (aged 16 at the time) on a friend's Facebook account, without the victim's consent, constitutes the offense of violating privacy. These photographs were taken in a hotel room in 2011-2012 with the victim's initial consent (Aiud Court, criminal sentence no. 18/19.01.2018, www.legal-land.ro).
Provisions of Law No. 190/2018 on the Protection of Personal Data
Law No. 190/2018 represents Romania’s primary legislative framework for implementing the General Data Protection Regulation (GDPR) at the national level. This European regulation has redefined how organizations handle the collection, storage, and processing of personal data for EU citizens.
While Law No. 190/2018 does not explicitly address the act of recording individuals without their consent, its provisions indirectly influence the legality of such actions.
Principle of Consent
Under both Law No. 190/2018 and the GDPR, the processing of personal data, including audio or video recordings, requires the explicit and informed consent of the data subject. Recording an individual without their consent constitutes a clear breach of this principle.
Legitimate Purpose for Data Processing
The processing of personal data must be guided by a specific and legitimate purpose. Recordings conducted without a valid justification and the individual’s consent cannot be deemed lawful.
Data Security Obligations
The law mandates data controllers to implement robust technical and organizational measures to safeguard personal data against unauthorized or unlawful processing. Recordings made without authorization may constitute a data security violation, subject to penalties.
Individuals' Rights
Individuals are entitled to be informed about the processing of their data, access it, request corrections, and demand its deletion. When recordings are made without prior consent, the data subject may exercise their right to have such recordings erased.
Consequences of Unauthorized Recordings
Romania’s National Supervisory Authority for Personal Data Processing (ANSPDCP) and corresponding authorities in other EU member states can impose severe administrative penalties for GDPR breaches, including fines of up to 4% of a company’s global annual turnover.
Additionally, individuals whose rights have been violated may seek compensation for moral and material damages caused by the unlawful recording, based on the civil liability of the responsible party.
Recording Conversations in the Workplace. Ask a Lawyer
The practice of recording conversations in the workplace has become increasingly common, particularly in the context of potential disputes between employees and employers. The key issue is whether such recordings are legal and admissible as evidence in court.
Employee-initiated recordings
The High Court of Cassation and Justice has affirmed, through various judicial decisions, the use of recordings made by employees as evidence in labor disputes. In general, these rulings are based on the need to ensure fairness between the parties and to provide employees with a means to defend themselves in cases of abuse by the employer.
Among the recent decisions, Decision No. 39/2024 of the High Court of Cassation and Justice (ICCJ) provides clarification on the use of telephone conversation recordings as evidence in labor disputes. The court ruled that such recordings may be admissible, even without the consent of the interlocutor, provided they comply with the principles of necessity and proportionality:
"The evidence of a telephone conversation between an employee and another employee or an employer’s representative, requested in a dispute against the employer, is admissible, even if the recording was made without the consent and/or prior knowledge of the interlocutor, as long as a fair balance is ensured between the right to evidence on one hand and the right to privacy on the other, meaning that the admission of the evidence must be indispensable to the exercise of the right to evidence and strictly proportional to that purpose."
The factors influencing the admissibility of employee-made recordings as evidence include:
Purpose of the recording: If the recording was made with the intent of gathering evidence for a potential dispute, it is more likely to be accepted as evidence.•
Content of the recording: The recording must be relevant to the case at hand and should not contain irrelevant information or material that could compromise the privacy of others.
Method of obtaining the recording: The recording must have been obtained legally and without infringing upon the rights of others.
Therefore, the conclusion is that some recordings made by employees may be admissible in labor disputes, even if they were made without the employer's consent. Such rulings have significant implications for how internal communications are managed within organizations. Employers must be aware that telephone conversation recordings, even without the interlocutor's consent, may be used as evidence in court, under conditions set forth by the court.
Employer-initiated Recordings
While the Labor Code does not specifically regulate the recording of conversations between employers and employees, it does address the protection of employees' fundamental rights, including privacy and personal data protection. The legality of recordings made by employers is more specifically regulated under Law No. 190/2018 concerning the Protection of Personal Data.
Article 5: Processing of Personal Data in the Context of Employment Relationships
When electronic communication systems and/or video surveillance systems are used in the workplace, the processing of employees' personal data for the legitimate interests pursued by the employer is permitted only if: a) the legitimate interests pursued by the employer are adequately justified and outweigh the interests or rights and freedoms of the individuals concerned; b) the employer has provided employees with mandatory, comprehensive, and explicit prior notification; c) the employer has consulted the union or, if applicable, the employee representatives before implementing the monitoring systems; d) other less intrusive methods to achieve the employer's goals have previously proven ineffective; and e) the retention period for personal data is proportionate to the purpose of processing, but no longer than 30 days, unless specifically required by law or reasonably justified.
For instance, during a job interview, an employer cannot record conversations with a candidate without prior notification and consent. Failing to do so may be considered a violation of the individual’s right to privacy. Additionally, in employment relationships, employers cannot record employees' conversations without a clear legal basis, such as for security or the protection of workplace activities.
However, exceptions exist where recordings are made to protect legitimate interests, such as fraud prevention or ensuring professional conduct. These recordings must comply with legal requirements and respect employees' rights. Employers may also record the telephone conversations of employees working in call centers or similar roles where such recordings are necessary for training or monitoring purposes, but they must inform employees and obtain their consent beforehand.
Questions and Answers
What is the difference between recording in a public space and in a private space?
Public space: generally, audio or video recording in a public space (street, park, public transportation) is allowed. However, it is important to respect others’ right to image and privacy – for instance, filming or recording someone in a way that harasses or intimidates them may be subject to penalties.
Private space: Recording in a private space (home, office, public restroom) without the consent of all present individuals is generally illegal. This constitutes a violation of privacy and can lead to legal consequences, including criminal liability for committing offenses.
What does "informed consent" mean in the context of recording a person?
Informed consent is a free, specific, informed, and unequivocal expression of will, through which the individual concerned gives their consent for the processing of their personal data, including audio or video recording. For consent to be valid, it must be:
Free: The individual must feel free to refuse or withdraw consent at any time without facing negative consequences.
Specific: The consent must refer explicitly to the purpose for which the recording is made.
Informed: The individual must be clearly and fully informed about the purpose of data use, their rights, and the identity of the data controller.
Unequivocal: The consent must be expressed in a way that allows clear evidence of agreement.
What should I do to legally record a phone conversation?
To legally record a conversation, it is best to obtain the consent of the person you are talking to or inform them about the recording. In certain situations, the law may allow recording without consent, but there must be a legitimate interest, and the recording must not infringe upon the individual’s fundamental rights.
How does GDPR apply to recordings made without consent?
Under GDPR, recordings made without consent are allowed only in contexts where there is a clear legal basis (e.g., legitimate interest of one party). However, these recordings must adhere to the principles of transparency, proportionality, and minimization of personal data collected.
Is it legal to record a conversation in a work meeting without the other participants' knowledge?
Generally, recording a work meeting without informing the participants may be illegal, especially if it violates their right to privacy. It is recommended to inform all participants of the intention to record.
Can an employee record a conversation with the employer without their knowledge?
Generally, recording a conversation without the consent of the other party is illegal. However, in specific labor disputes, courts have ruled that employees may use a recording made without the employer’s consent to prove abuse (harassment, discrimination, etc.). Even in these cases, it is advisable to consult a lawyer for managing labor disputes.
Can a recording made without the other party’s consent be used in a family dispute?
A recording can be used as evidence in a family dispute, but the court will examine whether it was made legally. Recordings made without the consent of the involved party may be rejected if they are deemed abusive.
What conditions must be met for a recording made without consent to be accepted as evidence in court?
Recordings made without consent can be admitted as evidence if they are necessary to protect a legitimate interest, are proportional to the intended purpose, and do not infringe upon the fundamental rights of the recorded individual, such as the right to privacy.
What happens if an employer records an employee without their consent?
If an employer records an employee without consent, it may result in a violation of the employee’s right to privacy. The employer may face penalties under labor laws or data protection laws, and the recordings may be dismissed as evidence in court.
Is it legal to record a private conversation between two people without them knowing?
Recording a private conversation between two people without their knowledge is generally illegal and may constitute a criminal offense. The law protects the right to privacy, and violating it may result in penalties, including criminal charges. There may be exceptions if there is a well-founded legitimate interest or legal authorization to do so.
What happens if I was recorded illegally and the recording is published online?
Publishing an illegal recording online may have the following consequences:
Criminal liability of the person responsible: The person who made the recording and the one who published it may be prosecuted for invasion of privacy, violation of domicile, or dissemination of intimate images or sounds.
Moral damages: The injured person may claim moral damages for the harm suffered.
Content removal: In principle, the online platform where the recording was published may be obligated to remove it.
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