Covert Recordings of Telephone Calls in Ireland

The situation in Irish law is complex, and is governed by at least three separate provisions – the Interception of Postal Packets and Telecommunications (Regulation) Act 1993, the General Data Protection Regulation (GDPR), and an individual’s constitutional right to privacy, plus their rights under European Convention on Human Rights.

Is it illegal to record a phone call?

Not necessarily. Under Irish law, it is not illegal for a person to record a call if he/she is party to that call. However, under the Postal Packets and Telecommunications Messages (Regulation) Act 1993, recording a phone conversation between other people without their authorisation amounts to interception – a serious criminal offence.

The definition of “interception” means that generally only “single party consent” is required for phone recordings in Ireland. Single-party consent means “it is not illegal to record a telephone conversation if one of the parties to the call consents to the recording.” This contrasts with many other countries, where the permission of both parties is always needed.

What is the penalty for unlawfully intercepting communications?

It is a serious offence. On summary conviction, the fine can be up to €800 and/or imprisonment for 12 months. On indictment the fine can be up to €50,000 and/or imprisonment for five years.

Carte blanche

The Interception of Postal Packets and Telecommunications Act only covers recordings over a telephone – its remit does not extend to conversations over Skype, Facetime or WhatsApp.

But that does not give you carte blanche to set up an amateur phone-tapping operation. Under the single party consent rule, recording telephone conversations without the consent of either party is illegal. In 2008, Associated Newspapers was ordered to pay €90,000 to a woman after the Mail on Sunday had published details of her relationship with a priest, after it accessed recordings of her private telephone conversations that had been illegally taped and published.

Even if you are not running afoul of the “single party consent” rule, you could still find yourself in breach of GDPR – depending on why you are recording it, and what you are planning to do with the recording afterwards. The GDPR governs and generally restricts the use of ‘personal data’, so it does not deal expressly with the issue of recording telephone conversations. However, since phone calls will almost always contain personal data, the requirements of the GDPR might well apply – but it would depend on the context in which the call is recorded.

So, recordings made for personal or household use are generally outside data protection legislation. But that legislation is not the only relevant consideration.

Intimate moment

Imagine, for example, that you find yourself in the position where someone records you in an intimate moment without your consent. They might not be in breach of data protection legislation, but they may well have infringed on your constitutional right to privacy.

Recordings made in the workplace or another public space, and recordings made for public broadcast, are a different matter. Covert recordings by employers are generally in breach of data protection legislation, unless there’s a specific criminal investigation under way involving An Garda Síochána.

That does not mean that covert footage can never be used in a court case. Covertly recorded evidence can be admissible, depending on the precise circumstances and reasonableness of the intrusion.”

An example is the RTÉ Prime Time Investigates programme that was based on hidden camera footage recorded in the Áras Attracta nursing home. Some 190 hours of video footage was filmed by an undercover reporter in November 2014 at the home in Swinford, Co. Mayo. Six care staff were subsequently charged with assault following a Garda investigation.

Legal representatives of the six accused challenged the admissibility of the video evidence. However, the judge found that the encroachment on the individual rights of the accused or of the residents was “not unreasonable” in the circumstances. 

The courts in Ireland are reluctant to exclude evidence solely on the basis that it is in breach of data protection law. 

But it is not just single-party consent, GDPR and privacy people need to consider. If an employee covertly records a telephone call in the context of their job, it may also be a breach of their terms and conditions of employment. 

Employers who intend to record their employees should tread especially carefully. Different considerations arise if it is not an employee, but rather an employer, carrying out the recording. The power imbalance in that case makes it much less likely that the recording will be proportionate or necessary.” 

‘Devoid of merit’

But – once again – it depends on the context. In 2012, for example, a prison officer was unsuccessful in his High Court bid to stop his employer using CCTV footage of him allegedly assaulting an inmate, on the grounds that it would infringe on his data protection rights. The judge in that case ruled the defendant’s claim was “devoid of merit”.

So, what about recording someone in a public space, with a view to, for instance, shaming them on social media? That is where things get – if it’s possible – even murkier.

Irish law, as things stand, does not specifically address or prohibit taking pictures of people or recording people, except in the harassment context. If you are persistently watching somebody or recording them, that can amount to the crime of harassment.

What about a one-off photo or recording? This is unlikely to amount to a crime but may still present data protection issues. Several issues must be taken into account. Is it a photo of a public figure? Or a child? Was it taken during a public event? Should the person have expected to be photographed? What is the public interest in publishing the photo? We do not lose our right to privacy when we step out into public spaces.

So, if you are thinking of doing an “Omarosa”, it might be best to think again.

(The Trump administration found itself mired in controversy yet again week as it emerged that a former staffer and one-time Apprentice contestant, Omarosa Manigault-Newman, had been secretly recording conversations with her co-workers, including the president.

Nothing particularly embarrassing was said during the exchange with Trump – the vitriol he expressed on Twitter afterwards, calling her a “crazed lowlife” and “that dog”, was arguably far more damming – but he was furious at having been recorded without his knowledge.

Manigault-Newman – who has the inevitable book to promote – has since threatened to release further recordings. “There’s a lot of very corrupt things happening in the White House, and I am going to blow the whistle on a lot of them,” she said.

She is not the first person to record a conversation in her workplace, even if the private discussions among her co-workers are probably more newsworthy than those of the average disgruntled employee.

Where once you might have had to wear a wiretap, or carry a recorder, in order to tape someone without their knowledge, smartphones and smartwatches have made “doing an Omarosa” as simple as tapping a screen. If you want to record your boss, a colleague or a total stranger unbeknownst to them, it has never been easier. But that does not mean it’s legal, or advisable.)

An Garda Síochána and Covert Recordings

What form of authorisation is needed?

The 1993 Act permits the recording of phone calls provided that either the caller or the receiver consents to it. This is why, for example, when you ring your bank or insurance company, an automated voice informs you that you may be recorded. No breach of the law occurs in that situation as you are deemed to consent to the recording if you stay on the line. If there was no such warning when calls were made to or from Garda stations, one legal source says, a breach of the Act may well have occurred.

In what circumstances can Gardaí legally intercept calls?

The Minister for Justice can give a three-month authorisation, by written warrant or orally in exceptionally urgent cases, but only for the purposes of a specific criminal investigation or in the interests of the security of the State. Specific conditions, set out in legislation, must be met. The Act provides for applications to be made by the Garda Commissioner or the chief of staff of the Defence Forces in writing. The application goes to a nominated officer who considers it at first instance and then passes it up to the Minister. Such authorisations are subject to review by a High Court judge.

What about Data Protection law?

The Data Protection Acts state that a person’s information should only be collected lawfully, fairly, for specific purposes only, and that it should be retained for no longer than necessary for those purposes. Those principles would be breached if Gardaí were engaged in blanket recording and retention of calls, particularly without informing the individuals concerned.

What if Gardaí were recording conversations between suspects and their lawyers?

Such discussions have legal privilege and could never be used as evidence in court. If phone calls between solicitors and their clients were being listened to, it would come close to “perverting the course of justice”, one legal source said.Could there be implications for cases involving disclosure?

Yes. Gardaí and the Director of Public Prosecutions have an obligation to furnish to defendants any material that is of relevance to their case and the courts have interpreted this broadly, one lawyer said. If a person called to a Garda station to speak to a garda about a case, that communication – if recorded and retained – should be the subject of the normal disclosure procedures. A criminal lawyer says this week’s revelations could lead to many applications for disclosure of such calls, with potentially wide-ranging implications for live or pending cases.

Could convictions be set aside?

One of the Government’s concerns is that live cases could be jeopardised or that convictions could be deemed unsafe as a result of the recordings. For example, if a person could show he/she was convicted in circumstances where Gardaí were in possession of secretly recorded information that tended to help the defence but did not disclose that information, a conviction could be set aside.