Is it possible to record a conversation on a dictaphone without warning, what does the law say

Legislation introduces bans on photo and video recording, as well as recording conversations with the consent of third parties. But the norms contain a clarification: it is impossible to carry out these procedures if the described actions affect the privacy of people. But the legislation provides for other cases where it is possible to record conversations on a tape recorder without warning; to determine whether it is possible to do this without the consent of the person, only the relevant regulations help.

Legislative framework

Norms regulating the rules and procedure for recording on a dictaphone are specified in the Criminal Code and the Civil Code. This procedure is also regulated by several federal laws and bylaws.

Recording conversations on a dictaphone

Due to the fact that the rules governing the recording of conversations on a tape recorder are spelled out in several norms at once, for a general understanding of the specifics of this procedure, it is recommended to familiarize yourself with the norms of the Constitution of the Russian Federation.

The difficulty in determining a clear rule explaining the specifics of the raised issue is that this problem is interpreted in different ways. In particular, judicial practice shows that when recording a conversation on a dictaphone it is necessary to take into account the accompanying circumstances.

Constitution of the Russian Federation

The Russian Constitution states that every citizen is obliged to obtain consent from third parties for the collection, storage, distribution and use of information that directly relates to the personal life of a person. This rule is conditioned by the following rights:

Russian Federation Constitution

  • to the inviolability of life;
  • to privacy of person and family life;
  • to protection of honor;
  • to the secrecy of correspondence and other types of communication (telephone conversations and so on).

Based on the above, it turns out that in order to record a conversation that directly affects a person’s personal life, the latter must consent to it. Moreover, to avoid prosecution in such cases, it is recommended to find a witness to the conversation or to get a written confirmation.

However, the Constitution does not say whether the conversation can be recorded if it does not affect a person’s private life. That is, it means that in such circumstances it is allowed to turn on the recorder without consent.

Russian Civil Code

The Civil Code of the Russian Federation supplements the Constitution with several norms that expand the concept of privacy with the following rules:

Civil Code of the Russian Federation

  • Collection of information about a person’s whereabouts or location is prohibited;
  • dissemination of personal information is prohibited, provided that this information was obtained in the performance of certain duties (in particular, this rule applies to civil servants);
  • dissemination of personal information through works of art or literature, scientific publications is prohibited;
  • It is forbidden to disseminate personal data about a deceased person without the consent of the closest relatives.

There is an exception to the first point: state agencies and other organizations have the right to disseminate personal data about a person, provided that the latter has previously made such information publicly available or it happened for other reasons.

The same article of the Civil Code of the Russian Federation, which lists the above prohibitions, specifies the grounds for appeal to the court regarding illegal recording of conversations on a dictaphone. Such information cannot serve as evidence in infringement proceedings and must be destroyed. However, this does not apply to cases of dissemination of information that has become public. If a conversation recorded on a dictaphone contains personal information that was previously made public, such recording is not considered illegal.

Criminal Code of the Russian Federation

The Criminal Code supplements the described provisions with penalties provided for the unlawful dissemination of personal information about a citizen. Fines and other sanctions are introduced for the collection and transfer of information about a person’s private life without the consent of the latter, including through public statements or other similar actions. This also applies to the violation of secrecy:

Criminal Code of the Russian Federation

  • personal correspondence;
  • telephone conversations;
  • other means of communication.

At the same time, the Criminal Code of the Russian Federation contains norms prohibiting the illegal production and sale of means of obtaining information about a person without consent. However, this norm does not apply to the purchase/sale of voice recorders. These devices are designed to record any conversations, not just those that involve personal life.

Law “On Information, Information Technologies and Information Protection”.

This Federal Law only repeats those rules of receiving and disseminating information of personal nature which are listed in the Constitution. At the same time the Federal Law specifies that such prohibition can be repealed.

Federal Law “On communication”.

The norms given in this Federal Law also repeat what is stated in the Constitution and supplemented by the Civil Code. The only addition to this law is that it is forbidden to disseminate personal data about a citizen which is transmitted via telecommunications networks.

Federal Law

Federal law “On Operative-Investigative Activity”.

The federal law regulates the procedure for obtaining personal information, including the use of a dictaphone. This law states that when a conversation is recorded by an unauthorized person, the latter must publicly declare his actions.

It follows from this rule: a person with the appropriate rights may record personal information about a citizen without the consent of the latter. Information obtained in this way is taken into account by the courts. However, this information also cannot be disseminated in the public domain unless the citizen gives his or her consent.

The Personal Data Law

This law defines a list of people who have the right to record conversations on a dictaphone without warning. Such persons include employees of law enforcement agencies and medical institutions.

Law

How to prove an illegal recording of a conversation

To prove that the recording was made illegally, it is necessary to clarify

  • That the information presented in the recording is personal in nature;
  • The list of persons who have the right to make such recordings;
  • the conditions under which the recording was made, and other circumstances.

Russian courts have an ambiguous attitude to dictaphone recordings. This is due to the above-mentioned factors that determine the legality of such procedures. In particular, it is often difficult for judges to establish that the information on the record relates to personal information.

Case law

As mentioned above, courts have a different perception of information obtained through a dictaphone. Thus, if the defendant or another person is able to prove that the recording, which contains personal information, was made for the purpose of self-protection, such evidence will be taken into account.

Case law

Courts have been ambivalent about cases that involve the financial side of citizens’ lives. However, audio recordings containing information about the receipt or extortion of a bribe may be admissible as evidence. Also the data obtained in this way can indicate the fact of recognition of a debt to a specific person, the existence of “black” wages and other similar actions.

A clearer position was expressed by the Supreme Court regarding the recording of telephone conversations. The collection of such information is possible if the conversation did not involve personal topics, but each person involved in the communication is an interested party. Such a ruling was made after providing an audio recording that recorded a discussion between two women about the specifics of the contract.

Conclusions

The current legislation is clear: the collection of information of a personal nature is not possible without consent or authority. The latter are endowed with the staff of law enforcement agencies and medical institutions. At the same time, citizens have the right to record conversations on a tape recorder without consent, provided that in the process of communication information about personal or family life is not disseminated.

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