PHONE-TAPPING AND RECORDING OF A PHONE CONVERSATION

IS IT LEGAL AND ADMISSIBLE?

“Who are you? Why do you hide in the darkness and listen to my private thoughts?” 

William Shakespeare, Romeo and Juliet

Is Privacy history? The sheer number of court trials where a telephone recording is sought to be used by either party as evidence, suggest that private thoughts are not private anymore. Use of such recordings in court cases has risen enormously in the recent past. In this background, the Authors examine the very legality of the act of recording of a phone conversation by a private party to the conversation, without the knowledge of the other party. The Authors also examine as to whether such a phone conversation can be used as legally admissible evidence, and if yes, what is the evidentiary weight that is to be attached to it.  

LEGALITY:

At present, there is no specific statutory regime for data protection in India which would govern the clandestine recording of a phone call. In light of this rather gaping legislative void, the law applicable to situations such as recording of a phone call without knowledge is often not direct, or fully tested by judicial interpretation. This is particularly true in case of such recording being conducted by a private person as opposed to recording/tapping/interception by a governmental authority or agency of the State.  

The Indian Telegraph Act, 1885 – In absence of a specific law governing the issue, the law most frequently applied to such cases is a dinosaur of a law – The Indian Telegraph Act passed way back in1885 (hereinafter, “Telegraph Act”). Section 25 of the Telegraph Act criminalizes the offence of damaging or tampering with a telegraph.^[3] The offence includes the act of tampering a telegraph or the working of a telegraph with the intention of intercepting or acquainting oneself with the contents of any message^[4].  However, precedent reveals that this section has mostly been pressed into service only for the prosecution of third parties intercepting a call, and not the parties to the conversation. The tenor of the section also appears to suggest that criminality is attachable only to a third party, who somehow breaks into the conversation. The phrase ‘Interception’ / ‘Acquainting oneself with the contents of a message’ do not appear to cover a situation of a person recording their own telephone conversation with another. A person recording his/her own conversation with someone cannot be said to have ‘intercepted’ his own conversation, or damaged/tampered a device with a view ‘to acquaint himself with the contents of (his own) message/conversation’. Therefore, strictly speaking, an act of clandestinely recording one’s own conversation with someone does not appear to be culpable under this section.

This is further hammered-in by the principle of strict construction which mandates that a penal statute has to be construed strictly, and only if an act clearly and squarely falls within the definition of a penal section – should criminality be attracted. Therefore, on an overall analysis, it does not appear that a party recording its own conversation may fall within this section. Having said that, there is no direct judicial decision on this point, and this is a position of law that remains to be tested. It cannot be commented with certainty at this stage how the courts may interpret it. However, the courts are not likely to hold such an act criminal under the present legislative scheme of things.

The leading decision on Section 25 of the Telegraph Act is one rendered by the Supreme Court of India way back in 1972^[5], wherein the appellant had been convicted by the lower courts for corrupt practices, on the basis of evidence that included a telephone conversation recorded on tape. A challenge was made to the conviction inter alia on the ground that the police, by recording the telephone conversation, had contravened Section 25 of the Telegraph Act. The Supreme Court turned down this contention based on the fact that this was a case where a person who was allegedly being extorted over the telephone, had allowed the police to listen-in to the conversation and record the same. It was not a case of someone breaking into the conversation to acquaint themselves with the conversation. In the absence of any such fact, this was held not to be a criminal offence on the part of the policemen who tapped the conversation. Though the decision is old, and Section 25 is most often used for the prosecution of theft, or illegal utilization of telephonic lines, data circuits, etc., there have been cases in the recent past where the provision has been attracted in the context of criminal prosecution against non-consensual/unauthorized tapping of phone calls by third parties.^[6]There is hardly any prosecutions initiated under Section 25 against a party to a conversation for recording it clandestinely. The above prosecutions have been initiated with respect to a third party recording a conversation without knowledge/consent of the parties to the conversation.

What can be gleaned from relevant judicial decisions on the issue, which are clearly few and far between, is that if a third party intercepts the telephonic conversation between two parties, then it is a violation of the right to privacy of the parties conversing on phone^[7]. However, there does not appear to be judicial consensus on the question of a party to the conversation recording the same without consent: While courts have held such a recording to be a violation of the other party’s right to privacy, and therefore, not admissible in evidence, a contrary view has also been taken^[8].  

The Information Technology Act, 2000 – The other statute that may be relevant to the present discussion is the Information Technology Act, 2000 (“the IT Act”). However, the applicability of this statute to the specific situation under discussion appears to be quite limited.

Section 43A of the IT Act^[9] provides for compensation by a body corporate to any person whose sensitive personal information or data such body corporate possesses, deals with or handles, in a computer resource that it owns, controls or operates, if, on account of the negligence of such body corporate, wrongful loss or gain is caused to any person. ‘Sensitive personal data or information’ has been defined in an executive notification passed under the said Section 43A^[10], and includes, inter alia, information in relation to a person’s finances, sexual orientation, biometrics, etc. 

Therefore, Section 43A of the IT Act may be applicable to the present situation in the very narrow factual context where hypothetically, a company intercepts a telephonic conversation taking place on a device which the company owns, and negligently allows unauthorized access or disclosure of a person’s sensitive personal information, and such negligence results in wrongful loss to that person or wrongful gain to another. 

Apart from Section 43A of the IT Act, the applicability of other provisions of the IT Act is as follows: Section 66^[11](to be read with Section 43^[12]) is applicable if a person, without permission of the owner of a telephonic device, gains access to such device or downloads data from it. However, merely recording a telephone conversation with someone with the help of a recording equipment/software at the recorder’s end of things might not qualify the test of this Section and may not be considered ‘culpable’. Further, Section 66E^[13] that punishes violation of privacy only applies to images and not voice recordings. In its remaining scheme, the IT Act only regulates interception of electronic records when made by governmental or government-authorized agencies or persons. It does not talk of such interception or storage when made by a private person.

Therefore, the Telegraph Act as well as the IT Act do not appear to criminalize the act of clandestine recording of telephone conversation by a party to the conversation.  

ACTION IN TORT/CIVIL ACTION 

Notwithstanding the above, a person aggrieved by such secretive recording of conversation may make a claim in tort for violation of her privacy. Tort law in India is uncodified, and therefore, a court would look to common law for guidance in case of such a legal action, if brought. In recent times, Courts, in at least two reported decisions, have held clandestine phone recordings to be a violation of right to privacy^[14]. Further, in view of the verdict in Justice K.S. Puttaswamy (Retd.) v. Union of India^[15] (hereinafter, “Puttaswamy”), it is now settled law that the right to privacy is a fundamental right emerging primarily from Article 21 of the Constitution of India. Freedom from unwarranted stimuli^[16] and freedom of thought^[17] appear to have been read as falling within the meaning of the fundamental right to privacy. Privacy itself was held to have a negative aspect (the right to be let alone) and a positive aspect (the right to self-development)^[18]. However, even in the cases aforementioned (at Note 14), the court stopped at holding clandestine phone recordings to be a violation of ‘privacy’ and no civil or criminal consequences followed.

In the context of sting operations by private persons, the Delhi High Court has observed that “a sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilized society,’ and ‘normally, if a private person or agency unilaterally conducts a sting operation, it would be violating the privacy of another person and would make itself liable for action at law.”^[19] 

Nonetheless, in practice, courts have adopted an approach where they weigh public interest against the right to privacy, on a case to case basis. In Court on its Own Motion v. State^[20], it was held that: “Sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person.” It remains to be seen how future rulings in this context are affected by the decision in Puttaswamy.

There does not appear to be any precedent where damages have been awarded for clandestine phone recording by a party and consequent violation of right to privacy of the other party to the phone conversation. 

USE OF SUCH A CLANDESTINE PHONE RECORDING FOR THE PURPOSE OF INSTITUTING A COURT CASE, AND ITS ADMISSIBILITY IN EVIDENCE

There is no bar on institution of a suit/claim/complaint based on a phone conversation recorded by a party without the knowledge of the other party.

In order to examine the possible use of a phone conversation as evidence, the statutory regime relating to admissibility of electronic evidence may briefly be alluded to. 

The legal regime in this regard becomes apparent from a conjoint reading of the IT Act and the Indian Evidence Act, 1872 (“Evidence Act”). A voice recording would fall within the definition of “electronic record” provided in the IT Act.^[21]

The output of an electronic record (which in this case is a phone conversation, which may be saved in the form of an audio file, and then the output produced on a CD/DVD, or any other medium) is deemed to be documentary evidence, provided the conditions relating to admissibility of electronic evidence are satisfied. 

Section 65A of the Evidence Act provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B of the Evidence Act^[22]. 

Section 65B^[23], in turn, lays down the requirements for admissibility of electronic evidence. The Supreme Court of India has laid down that in order for an electronic evidence (including a voice recording) to be admissible, the certificate provided for under Section 65B(4) of the Evidence Act is mandatory.^[24] Therefore, as long as the certificate fulfilling the requirements of Section 65B(4) is filed with a court, a voice recording is admissible. The entire idea behind the certificate is to ensure the integrity of data and computer system; the manner of production of output of electronic record, identity and particulars of device used (including the original device). The court needs the certificate to be assured of the integrity of source and authenticity of data, so as to place reliance on it. This is insisted upon since electronic data is more prone to tampering and alteration. However, admissibility is not the be all and end all. It is not that once the electronic evidence (recorded phone conversation, in this case) is held admissible in evidence, it would necessarily be relied upon by the judge for a decision in the case. Even after admissibility, a judge would still have to consider its logical relevance to the matter at hand, its probative worth, reliability and credibility. 

Applying the above principle, the output of the phone recording can be led in evidence in a civil or criminal case in order to establish facts. For the output on CD/DVD or any other medium, to be admissible, it has to be accompanied by the above certificate certifying the integrity of information, computer/mobile and the process of production of the output. If, however, the computer resource/medium on which a voice recording is stored (a flash drive, compact disk, etc.) is directlytendered into evidence, there would be no requirement of a certificate under Section 65B. This is because the voice recording, being a deemed document, is itself being produced for the inspection of the Court, and thus becomes primary evidence. The certificate under Section 65B would only be necessary in case, for instance, an output of such computer resource is being sought to be tendered into evidence, since in that case, the same would become secondary evidence. This is the law laid down by the Supreme Court of India.^[25]

ADMISSIBILITY OF EVIDENCE OBTAINED THROUGH ILLEGAL PHONE TAPPING  

The doctrine of ‘fruits of the poisonous tree’^[26] has largely been held to be not applicable in the Indian context. In American jurisprudence, illegally collected evidence, which is best described as fruit of the poisonous tree, is frowned upon by the American courts. In India, the 94^th Law Commission Report suggested to the Parliament to bring in similar provisions into our legal system, which was not accepted by the Parliament. The Supreme Court has discussed the 94^thLaw Commission Report, distinguished therefrom and has categorically held that the evidence collected illegally or in violation of the procedural law will not become inadmissible unless serious prejudice is caused to the accused.^[27]   

Indian courts have taken the view that there is no law in force that excludes relevant evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained.^[28] The Indian Courts have had no problem in accepting a fruit, no matter how poisonous, tainted or rotten the tree may be. This attitude of looking the other way, or of prioritizing pragmatism and expedience over legal principle, has left the police with no incentive to improve the quality of their investigations, or comply with the letter of the law concerning search and seizure. Be that as it may, the Courts continue to accept tainted evidence.   

In fact, specifically in the context of telephone recordings, the Supreme Court of India has held^[29] that even if a document or tape recording is illegally obtained, it would still be admissible as evidence, provided it fulfills certain criteria of genuineness and relevance. The said criteria with respect to admissibility of voice recordings were thereafter crystallized in another decision of the Supreme Court of India.^[30] Though this was a decision delivered in the context of recordings made on tape by a government official, it is still an authority for the general conditions under which a voice recording may be admitted into evidence. It laid down the following conditions for admissibility of a tape-recorded statement:

1. The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.
2. The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence — direct or circumstantial.
3. Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out, otherwise it may render the said statement out of context and, therefore, inadmissible.
4. The statement must be relevant according to the rules of the Evidence Act.
5. The recorded cassette must be carefully sealed and kept in safe or official custody.^[31]
6. The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

The requirements of admissibility were also imported from American jurisprudence, which requires, as a condition of reception into evidence:

1. a showing that the recording device was capable of taking testimony;
2. a showing that the operator of the device was competent;
3. establishment of the authenticity and correctness of the recording;
4. a showing that changes, additions, or deletions have not been made;
5. a showing of the manner of the preservation of the recording;
6. identification of the speakers;
7. a showing that the testimony elicited was voluntarily made without any kind of inducement.

• Therefore, if the above criteria are met, even the product of an illegal phone tapping would be admissible in evidence.

WAY FORWARD: THE NEW DATA PROTECTION LEGISLATION

The Draft Personal Data Protection Bill, 2018 (hereinafter, “DPP Bill”) which has been keenly anticipated by all for its repercussions on data privacy, has been introduced. The decision in Puttaswamy laid much of the groundwork for privacy legislation in India. India’s push to build a sturdy data privacy regime is at a critical juncture now with the coming of the DPP Bill.

The DPP Bill changes the paradigm of the relationship between service providers and users. This law which brings in constitutional precepts, viz the constitutional right to privacy, raises this relationship to a fiduciary level which is premised upon the fundamental expectation of trust. The terminology has been revisited to mitigate the inequality in bargaining power. The individual whose data is being collected as the “data subject” is now the “data principal”^[32], and the entity that collects the data as the “data controller” is the “data fiduciary”^[33].

Coming back to the issue at hand, the tenor of the DPP Bill (in its present shape) does not make it clear as to whether it would cover the clandestine recording of phone conversation by one party, without the knowledge of the other. It is not clear as to whether the dynamics of ‘data fiduciary’ and ‘data principal’ were intended to apply to private conversations between two parties, which are at arm’s length. Be that as it may,  even if parties to such a conversation were to fall within the definitions of ‘data fiduciary’ and ‘data principal’, the exemption of ‘Processing for the purpose of legal proceedings’ envisaged under Section 44^[34] of the DPP Bill may squarely apply to it, and permit the recording and use of phone conversations in legal proceedings, as evidence. 

It is hoped that future modifications to the DPP Bill would bring in clarity on the legality / criminality associated with recording of telephone calls. A possible guideline could be the ‘one party consent’ rule followed by the federal law of the Unites States, which permits recording of a phone conversation if one party to the conversation (including the recording party) consents.^[35]

CONCLUSION

Whether or not recording of a phone conversation by a party to the conversation without knowledge of the opposite party is an offence, is not very clear, and has not been judicially decided. There does not appear to be any reported prosecutions initiated against a party to the conversation for having committed an offence under the Telegraph Act. The language of Section 25 of the Telegraph Act and the relevant provisions of the IT Act also do not appear to suggest that simpliciter recording of phone conversation by one of the parties (without knowledge of other party) attracts any criminality. 

However, there have been cases of criminal prosecutions against third parties intercepting and tapping calls unauthorizedly. Therefore, the better judicial opinion is that it may not be a criminal offence for one party to a conversation to record the conversation without the knowledge of the opposite party.

However, the same may be construed as a violation of right to privacy – presently, a tortuous wrong, though such civil actions appear to be extremely rare. We are not aware of any case where compensation/damages have been awarded for violation of privacy caused by clandestine recording of phone conversation by one party, without the knowledge of the other.

Phone conversation inter se parties are extremely commonplace, and frequently relied upon by courts in India to decide facts and issues. As per the Supreme Court, even an illegally recorded conversation can be admissible in evidence subject to production of a certificate under Section 65B of the Evidence Act, and a satisfaction of conditions relating to genuineness and relevance as listed above. 

The present legal regime appears to be insufficient to deal with recording of telephone conversations, and the issue remains unregulated. It is hoped that the new DPP Bill may be tweaked with a view to regulate these situations. 

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