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Can a recording of a telephone conversation be brought to trial?
In many cases the interlocutor of a telephone call proceeds to record it and then tries to introduce the recording as evidence. Many people consider this way of acting to be contrary to the Constitution, because it would allegedly violate the right to secrecy of telephone communications protected by Article 18.3 of the Spanish Constitution. This only occurs in the case of a person who records a conversation in which he does not intervene, which is commonly known as "telephone tapping", and for these recordings or "tapping" to be valid, prior judicial authorization is necessary, because if not, the right to secrecy of telecommunications would indeed be violated.
However, whoever brings to trial a recording of a conversation in which he participates to prove some facts, is not violating any right (since he also records his own personal manifestations). And so, as our Courts say "
When a person voluntarily gives his opinions or secrets to an interlocutor, he knows beforehand that he is stripping himself of his privacy and transmits them, more or less confidently, to those who listen to him, who may use their content without incurring any legal reproach".
Is it necessary to warn that the conversation is being recorded?
It is not necessary for the interlocutor to know that the conversation in which he or she is participating is being recorded, but our courts do have certain requirements for the recording to be used as evidence:
- the person making the recording to intervene in the conversation, for which it is necessary that his or her voice is heard in the recording.
- that the recording is provided in its entirety, without cuts or manipulations.
- that incisive questions do not occur.
- that a specific response is not provoked (statements produced by deception by the person making the recording are not valid).
Could it affect other rights?
Thus, as we have seen, the right to secrecy of communications would not be affected, but could it affect the right to privacy? In this case the answer must be affirmative.
In addition, it must be said that if that same conversation, instead of being brought to trial, is disseminated, for example on social networks... a crime of disclosure of secrets or a crime against honor or privacy could be incurred.
Are video recordings valid?
In line with the above, and as video recordings contain much more information than voice recordings, because they show images as well as audio, it is much easier for them to violate the right to privacy of individuals, and therefore the general rule is that video recordings made in public spaces or premises or in official or commercial establishments will be valid, but the validity of those recorded in private places, such as homes, will be assessed with caution by the judge on a case-by-case basis.
In these cases, the jurisprudence of our courts requires that, in order to be valid as evidence, the person who obtained the images must appear in court, so that he can be questioned and submitted to the due contradiction that prevails in criminal proceedings.
Regarding the requirements for the validity of video recordings, it is necessary, as with voice recordings, that they have not been obtained by deception or provocation and that they have not been manipulated or edited, and if they are challenged by the party to which they are prejudicial, they should be subjected to technical examinations or expertise to ensure the absence of alterations or modifications.
