Depending on their content, covert recordings may raise issues of breach of privacy, breach of confidence, or breach of the Data Protection Act 2018 (DPA) and the General Data Protection Regulation (GDPR).
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 DPA and GDPR
Under the DPA and GDPR, personal data includes “any information relating to an identified or identifiable natural person”. Depending on the nature of a covert recording, it may well fall under this definition.
For individuals, there is an exemption under Article 2 of the GDPR which allows data to be used “in the course of a purely personal or household activity” (because the UK’s DPA works alongside the GDPR, this exemption also applies to the DPA). In such circumstances, where the use has no connection to a professional or commercial activity, the GDPR and DPA do 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 GDPR and 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 discussing his position as a director is, for him, a “personal activity”.
However, the company representative cannot rely on the “personal activity” exemption if they record the meeting with the director on behalf of the company, as they will be acting in their professional capacity.