Depending on their content, covert recordings may raise issues of breach of privacy, breach of confidence, or breach of the Data Protection Act 1998.
Breach of privacy
Article 8 of the ECHR provides that everyone has a right to respect for their private and family life, their home and their correspondence. The question is, therefore: is the content of the recording private? This will turn on the facts of each case, but as a general rule, if disclosure of the recorded information would give substantial offence to a person of ordinary sensibilities placed in similar circumstances to that individual, then it is likely to be private.
Even if a covert recording containing private information is not shared or made public, the ‘intrusion’ of the recording alone may be a breach of privacy.
Breach of confidence
To establish a breach of confidence, information must be:
- confidential in nature;
- imparted in circumstances where confidence would be expected; and
- disclosed in a way that is detrimental to the person imparting the information.
Whether there has been a breach of confidence will depend on the facts of each case.
Breach of the Data Protection Act 1998
The Data Protection Act 1998 (DPA) will be superseded by the EU’s General Data Protection Regulation on 25 May 2018.
Under the DPA, personal data includes “data which relate to a living individual who can be identified from those data”. Depending on the nature of a covert recording, it may well fall under this definition.
For individuals, there is an exemption under s.36 of the DPA which allows data to be used “only for the purposes of that individual’s personal, family or household affairs”. In such circumstances the DPA does not apply to the recording. However, if an individual discloses such a recording to a third party business, for example, the business itself cannot benefit from the exemption and it will have to comply with the requirements of the DPA in relation to the recording.
So, for example, a company director may record a meeting with a company representative if the director has a dispute with the company – this is because his position as a director falls within his “personal affairs”. However, the company representative cannot rely on the “personal affairs” exemption if they record the meeting with the director on behalf of the company.