The Trump administration found itself mired in controversy yet again this week as it emerged that a former staffer and one-time Apprentice contestant, Omarosa Manigault-Newman, had been secretly recording conversations with her co-workers, including the president.
Nothing particularly embarrassing was said during the exchange with Trump – the vitriol he expressed on Twitter afterwards, calling her a “crazed lowlife” and “that dog”, was arguably far more damming – but he was furious at having been recorded without his knowledge.
Manigault-Newman – who has the inevitable book to promote – has since threatened to release further recordings. "There's a lot of very corrupt things happening in the White House, and I am going to blow the whistle on a lot of them," she said.
She’s not the first person to record a conversation in her workplace, even if the private discussions among her co-workers are probably more newsworthy than those of the average disgruntled employee.
Where once you might have had to wear a wiretap, or carry a recorder, in order to tape someone without their knowledge, smartphones and smartwatches have made “doing an Omarosa” as simple as tapping a screen. If you want to record your boss, a colleague or a total stranger unbeknownst to them, it’s never been easier. But that doesn’t mean it’s legal, or advisable.
The situation in Irish law is complex, and is governed by at least three separate provisions – the Interception of Postal Packets and Telecommunications (Regulation) Act 1993, the General Data Protection Regulation (GDPR), and an individual's constitutional right to privacy, plus their rights under European Convention on Human Rights.
The definition of "interception" means that generally only "single party consent" is required for phone recordings in Ireland. Single-party consent means "it is not illegal to record a telephone conversation if one of the parties to the call consents to the recording," says Catherine Allen, a partner in Mason Hayes & Curran Solicitors. This is in contrast to many other countries, where the permission of both parties is always needed.
Carte blanche
As solicitor and UCD law lecturer Dr TJ McIntyre points out, the Interception of Postal Packets and Telecommunications Act only covers recordings over a telephone – its remit does not extend to conversations over Skype, Facetime or Whatsapp.
But that doesn't give you carte blanche to set up an amateur phone-tapping operation. Under the single party consent rule, recording telephone conversations without the consent of either party is illegal. In 2008, Associated Newspapers was ordered to pay €90,000 to a woman after the Mail on Sunday had published details of her relationship with a priest, after it accessed recordings of her private telephone conversations that had been illegally taped and published.
Even if you are not running afoul of the “single party consent” rule, you could still find yourself in breach of GDPR, warns Allen – depending on why you’re recording it, and what you’re planning to do with the recording afterwards. “The GDPR governs and generally restricts the use of ‘personal data’, so it does not deal expressly with the issue of recording telephone conversations, says Allen. However, since phone calls will almost always contain personal data, the requirements of the GDPR might well apply – but “it would depend on the context in which the call is recorded”.
What if you find yourself in the position where someone records you in an intimate moment without your consent?
So recordings made for personal or household use are generally outside data protection legislation. But that legislation is not the only relevant consideration.
Intimate moment
Imagine, for example, that you find yourself in the position where someone records you in an intimate moment without your consent. They might not be in breach of data protection legislation, but they may well have infringed on your constitutional right to privacy.
Recordings made in the workplace or another public space, and recordings made for public broadcast, are a different matter. "Covert recordings by employers are generally in breach of data protection legislation, unless there's a specific criminal investigation under way involving An Garda Síochána, " says McIntyre.
That doesn’t mean that covert footage can never be used in a court case. “Covertly recorded evidence can be admissible, depending on the precise circumstances and reasonableness of the intrusion,” he says.
He points to the example of the RTÉ Prime Time Investigates programme that was based on hidden camera footage recorded in the Áras Attracta nursing home. Some 190 hours of video footage was filmed by an undercover reporter in November 2014 at the home in Swinford, Co Mayo. Six care staff were subsequently charged with assault following a Garda investigation.
Legal representatives of the six accused challenged the admissibility of the video evidence. However, the judge found that the encroachment on the individual rights of the accused or of the residents was “not unreasonable” in the circumstances.
“The courts in Ireland are reluctant to exclude evidence solely on the basis that it’s in breach of data protection law,” McIntyre says.
But it’s not just single-party consent, GDPR and privacy people need to consider. Allen points out that “if an employee covertly records a telephone call” in the context of their job, it may also be a breach of their terms and conditions of employment.
What about recording someone in a public space, with a view to, for instance, shaming them on social media?
Employers who intend to record their employees should tread especially carefully. “Different considerations arise if it’s not an employee, but rather an employer, carrying out the recording. The power imbalance in that case makes it much less likely that the recording will be proportionate or necessary,” McIntyre says.
‘Devoid of merit’
But – once again – it depends on the context. In 2012, for example, a prison officer was unsuccessful in his High Court bid to stop his employer using CCTV footage of him allegedly assaulting an inmate, on the grounds that it would infringe on his data protection rights. The judge in that case ruled the defendant's claim was "devoid of merit".
So what about recording someone in a public space, with a view to, for instance, shaming them on social media? That’s where things get – if it’s possible – even murkier.
“Irish law, as things stand, doesn’t specifically address or prohibit taking pictures of people or recording people, except in the harassment context. If you’re persistently watching somebody or recording them, that can amount to the crime of harassment,” says McIntyre.
What about a one-off photo or recording? “This is unlikely to amount to a crime, but may still present data protection issues. Several issues have to be taken into account. Is it a photo of a public figure? Or a child? Was it taken during a public event? Should the person have expected to be photographed? What is the public interest in publishing the photo? We don’t lose our right to privacy when we step out into public spaces.”
So if you’re thinking of doing an Omarosa, it might be best to think again.
