In this article, Insiya Kothari of Indore Institute of Law talks about the concept of call recording, its meaning, and usage. What is the evidentiary value of a call recording in a court?’ Two approaches help explain the concept. One from a foreign perspective and one from an Indian standpoint. 

This article has been published by Sneha Mahawar.

Introduction 

Modernism in technology has blurred the line between private thought and public thought. Recording calls intertwines with the concepts of wire-trapping or phone tapping. Recording a call helps to confirm the words spoken by an individual. A call recorded for harming a person is unethical, and recording without the consent of the person speaking is a violation of the right to privacy. Section 65B of the Indian Evidence Act of 1872 outlines special provisions relating to electronic records. Dealing with tape recordings involves a delicate approach. The manner of obtaining telephone recordings is crucial from a legal point of view. The Indian stance on the admissibility of tape recordings is observed with the help of important cases and judgments.

Call recordings and right to privacy

Phone tapping is a serious crime unless there is a proper reason and authority behind recording a person’s private conversations. The right to privacy of an individual is a paramount concept that cannot be ignored in the view of electronic evidence. Article 21 in the Constitution of India, 1949 is the fundamental legal provision governing privacy. It further guarantees personal liberty as an inalienable birthright. However, if an authority is legally authorized, these telephone conversations are not private anymore, thus, can be collected or restored as judicial evidence. Further, Entry 31 of the Union List of India (List I) places the subject of call recordings under the list item “posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication.”

The right to privacy in the context of recording calls is important only when there is a matter of public emergency or in the interest of public safety. In People’s Union of Civil Liberties v. Union of India (2003), it was stated that secretly recording a person’s private conversations is a grave violation of the right to privacy of an individual. This case challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885. The Section grants legal authority to state and central organizations in India to record those telephonic conversations that are purely against the sovereignty and security of the nation. The Court also laid down detailed safeguards to check for arbitrariness in the issuance of telephone tapping orders and they are as follows : 

1. Orders for phone tapping may just be given by the Home Secretary of the focal government or a state government. In a crisis, this power might be designated to an official of the Home Department of the focal or state government, and a duplicate of the request should be shipped off to the concerned Review Committee in one week or less.
2. The power making the request should consider whether the data which is viewed as important to get could sensibly be gained by different means.
3. Orders given under the Indian Telegraph Act, 1885 will be legitimate for a very long time from the date of issue.
4. Survey Committees will be Secretary-level officials at both the federal and state levels. They might assess whether a capture request has been passed in accordance with the law, and on the off chance that it has not, they might save it and direct the obliteration of any duplicates of the caught interchanges.
5. The power to give the block attempt request should keep up with records of : (i) the caught interchanges; (ii) the degree to which material is revealed;  (iii) the quantity of people to whom the material is uncovered and their character; (iv) the degree to which the material is replicated; and (v) the quantity of duplicates made.

The importance of the right to privacy is further witnessed in the case of Vinit Kumar v. Central Board of Investigation and others (2019) where the Supreme Court answers the question of permissibility of tape-recorded conversations as judicial evidence. The case also highlights that any interception order of calls should not violate Rule 419A of the Indian Telegraph Rules, 1951. In another case of K.S Puttaswamy v. Union of India (2018), the Supreme Court laid down the “Principles of proportionality and legitimacy” to determine the legality of call recording orders issued by the government. It was held that if there was no risk to the public, then the government had no authority to issue orders for telephone tapping.

Legality of call recording in India

Section 2 of the Information Technology Act, 2000 provides the definition of an electronic record, which includes sound stored, received, or sent in an electronic form. Additionally, Section 85B of the Indian Evidence Act, 1872 deals with the law regarding the alteration of recorded electronic evidence. The authenticity and integrity of this electronic record are measured by a digital signature. This signature must be affixed to sign the record.

Further, Section 5 of the Indian Telegraph Act, 1885 concerns the power for the Government to take possession of licensed telegraphs and to order interception of messages. This Section provides a right to the Central or the State government to procure telegraphs in the interest of public safety. Thus, it can take hold of electronic messages given that there is a situation of public emergency. Section 65B of the Indian Evidence Act, 1875 provides for the conditions of admissibility of electronic evidence, and it also provides that a certificate is necessary for its related admissibility. Under Indian law, an electronic record is defined under Section 2(1)(t) of the Information Technology Act, 2000.

Moreover, Rule 419A of the Indian Telegraph Rules, 1951 is a very lengthy law. It can be summarized in two stages. The first stage is procurement and review of lawful orders. This Section states that directions for interception under Section 5 of the Indian Telegraph Act, 1885 can only be issued by the union or state home secretary. Further, in an unavoidable circumstance, a lawful order can be issued by a person of rank not less than a joint secretary. Unless all the ways of getting the information are ruled out, only then a lawful order can be issued. The second stage is the interception process. It is carried out by law enforcement agencies in India. In the interception process, the identity of the personnel and the agency is not revealed to the public.

Admissibility of call recordings in courts

Today, electronic evidence in the form of call recordings is used extensively in civil and criminal matters, but what’s more important is its admissibility factor. Section 65B of the Indian Evidence Act, 1872 provides for the admissibility of electronic records. A speech documented without the explicit permission of at least one of the speakers is not legally valid. The participants to the same conversation should consent to the recording. The evidentiary value, in any case, is the most important law behind developing the legality of the idea of presenting to the court a ‘digital’ form of evidence. 

S. Pratap Singh v. the State of Punjab (1964)

In this case, the Supreme Court accepted a telephonic recording of a conversation between two parties after examining the evidentiary value of tape-recorded conversations. The evidence submitted was accepted only because it helped to resolve the case. The parties claimed to have had a conversation that was then illegally obtained and subsequently allowed in this case. Thus, through this case, we gather insights into the admissibility factor of recorded electronic evidence. The court accepted tape-recorded conversations illegally obtained only because it helped in the conviction process.

Ratan N. Tata v. the Union of India and Others (2014)

Vexed telephonic recordings of former lobbyist Nira Radia, with several spokesmen, associates, and clerks in reciprocity with the recent 2G spectrum allocation scam caused several issues when published by a media house. The two most important legislations were the Television Networks (Regulation) Act of 1995, and the Information Technology Act of 2000. While the Delhi High Court was examining whether the contents of the phone conversations were debatable or even highly confidential, the Central Bureau of Investigation took over to assess the same influential nature of Nira Radia’s tapes. Since the tape recordings were authorized to be recorded, they were submitted and accepted as valid evidence by court order. Thus, the most important aspect of this case was whether the authorized recording of telephone conversations was illegal if it defamed any party to the conversation.

Important legal decisions

R.M. Malkani v. the State of Maharashtra (1973)

In this case, the Supreme Court of India stated that the most important legislation within the context of legal tape recordings is the Indian Telegraph Act. This case revolved around the question of using tape-recorded conversations as a basis for criminal prosecution of a person. The evidence under question was illegally obtained from tape recordings and so they were in contravention of Section 25 of the Indian Telegraph Act. Therefore, such evidence was inadmissible. It was further held that the right to privacy in the Indian constitution protects only innocent citizens and does not protect those who are trying to vindicate the police because they are guilty of immoral crimes. In this case, a doctor who was guilty of postoperative death in a hospital tried to escape his criminal prosecution through bribing. The council for the appellant challenged the admissibility of the tape recordings while proposing a gross violation of Articles 20 and 21 of the Indian Constitution. However, the Court held that the tape recordings were admissible as evidence even despite the violation of the Telegraph Act.

Ram Singh v. Colonel Ram Singh (1986)

This case was about an allegation where the appellant objected to the termination of voting in some part of a village. The issue was regarding the admissibility of statements that were recorded in the toll booth. The Court declared the tape recording as inadmissible. Thus, the Supreme Court dismissed the appeal on the ground that the tape recordings were not strong enough to support the evidence required to prove the issue raised by the appellant. The Court also stated that the recording did not promote any kind of confidence in the public. Thus, the protection of call recordings, audios, and other forms of digital evidence should be the same as other apparatus involving the right to privacy.

Rayala M. Bhuvaneswari v. Nagaphamender Rayala (2008)

In this case, the petitioner sought divorce from his wife based on a hard disk containing recorded phone conversations of his wife with her family members. Although the wife denied some contents of the recordings, the Court held that the relationship between the husband and the wife is a pure one, and that the husband who records calls of his wife is infringing on her right to personal liberty and privacy. In this case, the husband was considered a criminal in the eyes of the law, resorting to unconstitutional means to obtain evidence for divorce. Moreover, he recorded her calls without her consent, which is prohibited by the law, and is also an indecent act. The Court further held that where the husband cannot trust his wife, their whole marriage becomes redundant. 

The European General Data Protection Regulation (GDPR) 

European General Data Protection Regulation is a tenacious and well-framed regulatory framework that helps to protect personal data such as telephonic conversations. It is a crucial European law that provides a firm stance on privacy and data security. In a digital economy, this legislation adds to the ongoing legal interpretation by statutory bodies trying to develop better laws. It helps ordinary people secure better control over the usage of their data. GDPR standards impose strict fines on those who violate its rules. Within this law, data processing covers the collection, storage, retrieval, alteration, storage, and destruction. Its scope is wide and sufficient to take into control every data processing unit within Europe.

Legal compliance with the GDPR 

Article 4 of GDPR defines ‘personal’ data as any information relating to an identifiable natural person. GDPR compliance is binding in its entirety upon all member states. It applies to all institutions that process peculiar data and run their operations in Europe. These rules provide the right of access to business data to EU member states. The GDPR outlines the following measures for all data processing units.

• Process personal data in a lawful, fair, and transparent manner.
• The collection of personal data should be for a specific and legitimate purpose only.
• Personal data must not be retained longer than the necessary duration.
• The data must be accurate where necessary and must be kept up to date.
• Data processing must properly take place to maintain security.

Debate on recording calls

• If conversations would in some way threaten national security or public safety, it gives the government a solid reason to intervene using its phone-tapping powers. The act of listening in on another person’s conversation, or even recording it, has long been a topic of debate between law enforcement officials and civil liberties activists.
• In a world driven by fast technology, the act of recording someone’s calls is common because people take advantage of the vast network of unsecured communication, which means only a few people care about privacy. However, from the Indian perspective, the right to privacy and freedom of speech are fundamental human rights.
• The debate around ‘phone tapping’ clarifies the scope of governmental powers in allowing the uninterrupted exercise of the right to freedom of speech and expression. The main aim of the government is to secure personal liberty.
• Moreover, when a court decides to use a tape recording as evidence, a loss of reputation, identity, and integrity is inevitable because personal information contained in the evidence often reveals aspects of a person’s personal life that would have remained hidden had somebody not recorded the conversation.
• The discussion here clarifies the scope of governmental powers in allowing the uninterrupted exercise of the right to freedom of speech and expression. In a country like India, it is a common practice for the media to not care about privacy because the media thrives on giving the public what they want; i.e., gossip. Thus, when a privacy breach occurs, only a few authorities have the power to record calls such as the police or government-authorized agencies. The main aim of the government should be to secure personal liberty and security.
• The basic idea behind using tape recordings of phone conversations is to generate evidence on the words or actions of another person. While a recording may take place by any person, usually it is practiced by the government and high-ranking authorities to reveal information that would help in bringing justice to the courts. Another significant aspect of a call recording is whether it is done consensually or not. 

Importance of one-way and two-way consent

The term “consent” disintegrates into two main categories, i.e., one-way consent and two-way consent for recording calls. As the names themselves suggest, one-way refers to only one person agreeing to the call recording. Two-way refers to both the persons approving a legal call recording. The authenticity of electronic call recordings is evident through the parameters of consent. Thus, it is necessary to preserve the privacy of an individual. Places like California, Massachusetts, and Washington are a few states with a legal requirement to obtain two-party consent. Alabama, Hawaii, Texas, and West Virginia are a few states that require only one-party consent. Therefore, it goes without saying to ask for consent before recording someone’s call.

Status in other countries

Since the advent of high-functioning technology, privacy has become a big concern. In some cases, people tend to go beyond their capacity to record a call without consent and then use it to cause harm to a person’s reputation. So, all countries attempt to make call recording safe and secure to prevent a privacy breach. Various state and international regulations support this fundamental necessity for electronic evidence. Here, we examine the legality of such recordings in different geographic jurisdictions. With the importance of preserving the value of sensationalism for human beings, this Section helps us understand the importance of call recordings as a legal tool. We know that the courts may accept a piece of electronic evidence relevant to a case. But this acceptance generally comes with certain caveats for ensuring privacy and personal security.

Australia

In Australia, the Telecommunications Interception and Access Act (1979) prohibits a person from listening in on a live phone call without the permission of either party or both parties. While Section 7 prohibits recording calls, Section 6 defines the interception of calls. The most essential element in interception is the lack of knowledge of the person making the conversation. Thus, interception the general law in Australia states that a call must not be recorded.

Canada

Lawyers in Canada must comply with the Personal Information Protection and Electronic Documents Act (PIPEDA). Further, the legal requirements of privacy law ensure that lawyers carefully access, use, and disclose personal or sensitive information such as a call recording. Canadian law gives significance to consent while recording calls. The law also outlines a method in which the call may be recorded. This method should use either automatic recording software or a customer service agent. Further, if the caller does not consent to record, then they should have other alternatives for the transaction to take place.

New Zealand

In New Zealand, there is no specific law for recording calls except Part 9A of the Crimes Act, 1961. Section 216A which is an interpretation clause helps to understand interception devices as well as private communication. A call may be intercepted in two ways. Either when the conversation is taking place or while it is in transit. A transition takes place when there is an exchange of voices over the telephone. An interception device is used to intercept a private communication.

Sweden

The law in Sweden prohibits illicit telephone recording by individuals. The courts here grant permission to judicial officers to allow a call recording to take place legally. The Swedish Criminal Code (Brottsbalken) deals with the law relating to electronic evidence.

Conclusion

In recent years, exponential growth in the technological sector has made it both convenient as well as risky to conduct our personal affairs over telecom services. Both the Central and the State authorities have the power to record calls under Section 5(2) of the Indian Telegraph Act, 1885. Electronic evidence is a novel method of submitting evidence to the Court under Section 65B of the Indian Evidence Act. This article allows us to compare the two scenarios. Status of call recording evidence in foreign countries such as New Zealand or Sweden, and the law in India on the same topic. Various state and central legislations with some landmark cases demarcate India’s legal stance on call recordings. 

References

• https://www.semanticscholar.org/paper/Privacy-Levels-for-Computer-Forensics%3A-Toward-a-Halboob-Mahmod/b1a4833613b74b405a2cfda4c5e315f90d045ae7#references
• https://www.livelaw.in/phone-tapping-and-recording-of-a-phone-conversation-by-a-private-party-issues-relating-to-legality-and-admissibility/
• http://www.dmlp.org/legal-guide/recording-phone-calls-and-conversations
• https://blog.ipleaders.in/voice-recording-evidence/#comments
• https://sflc.in/indias-surveillance-state-procedural-legal-framework
• https://callhippo.com/blog/telephony/regulatory-compliance-for-call-recording-in-different-countries
• https://www.priv.gc.ca/en/privacy-topics/business-privacy/gd_phl_201106/

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