It is well known that in Spain the dissemination of law has moved from universities to the television or radio talk shows.
The general public only hears about legal matters through the voices of opinion-makers of all kinds and, therefore, their approach to issues that should form part of the set of reference points respected by the majority, and which are essential in any organised society, does not go beyond just that: superficiality, imprecision and banality.
And what general ideas are there about the possibility of recording your own conversations and then using them? Well, they oscillate between the idea that they are illegal since you have not warned the other party, and the idea that you have the right to do so because they are your conversations and you can have them, without limits. Infinite distance. Absolute vagueness and therefore contrary to the legal certainty that the legal system must guarantee us all.
The Spanish courts have been greatly refining the issue to the point that a very recent judgment by the Second Chamber of the Supreme Court (SC) of 16 March 2022 reiterates a very nuanced treatment of this issue in our law. We will try to explain its most relevant nuances.
We are dealing with a matter that has a direct impact on two fundamental rights: the right to confidentiality of communications (art. 18.3 EC), and privacy (art. 18.1 EC). This is not a precisely irrelevant field.
The Constitutional Court, in its well-known and very old ruling 114 of 29 November 1984, specified that the recording, even unnoticed by the interlocutor, of your own conversations in order to use them as evidence in court against them or against a third party, is a lawful act, which does not violate constitutional rights of either the interlocutor or the third party and which, therefore, is valid and legal evidence in court.
At the same time, the Spanish courts have made an effort to make it even clearer that recording a third party conversation is always illegal, if there is no prior authorisation from one of the interlocutors or judicial authorisation to intercept the communications of the person against whom the action is intended. It is so unlawful that, without such prior authorisation, it is a criminal offence under art. 197 of the penal code.
And it is also necessary to remember that the second paragraph of number 3 of the same article 197 PC specifies that “Whoever, with knowledge of their unlawful origin and without having taken part in their discovery…” disseminates, discloses or transfers the discovered recordings to third parties, shall be punished.
It is useful to recall here, by way of example, that the second SC upheld the conviction of a qualified private investigator who, at the wife’s request, placed a hidden microphone in the telephone in the bedroom of the family home so that he could record her husband’s conversations with another woman, in order to obtain evidence of his marital infidelity for a subsequent divorce trial. That detective spent several years in prison for such acts.
And it is not the only case in which surreptitious recordings (in their capture or in their seizure and diffusion) and their illegality are at the centre of controversies that have had a superlative impact on so-called “public opinion”, such as the case that led to the disqualification, as a prevaricator, of a central investigating magistrate of the Audiencia Nacional, for ordering the recording of conversations between lawyers and inmates in the prison premises themselves. Or the images recorded in a supermarket that revealed an episode of kleptomania, of goods of banal value, but which, years later, were widely disseminated, ending the political career of the person recorded. Or, much more recently, the dissemination of recordings of telephone conversations of a sportsman and businessman with the president of his sports federation. In all cases, it was clear that the discovery of such recordings was the result of a crime or, at the very least, of an unlawful act directly prejudicial to the fundamental rights of the victims.
The media, in almost all of these cases, have rushed to disseminate these recordings for their “obvious informative interest” without stopping to consider that with this conduct they were committing a criminal act under 197.3 CP. And the prosecutors and the courts have notoriously refrained from intervening.
In the case decided by the recent judgment of the 2nd SC of 16 March 2022, the recording took place in the following circumstances.
In the context of an alleged highly complex international financial scam, the victim is summoned by the fraudsters to a meeting with them in a hotel and decides to go to the police first to report the scam, as well as to inform the police of the imminent meeting with the alleged criminals.
The police officers considered the complaint to be credible and instructed the victim to surreptitiously record the entire conversation. They also told her that two officers would be visually present at the meeting, in the hotel, even if they could not hear her, and thus take over the recording on the spot, at the end of the conversation, in order to be absolutely sure of the integrity of the recording and thus record it in the police report.
At various points in this recorded conversation, the criminals clearly confess that the various means and systems they have used to pretend the solvency of the financial securities they were selling were in reality mere simulations and appearances that did not guarantee anything, and were only intended to deceive the unwary purchasers.
Well, the Supreme Court in its aforementioned ruling decided that this recording is unlawful evidence that cannot be used in court, because it understands that, although the recorded conversation only took place between the two alleged criminals and their victim, and that, therefore, it was a personal conversation, the reality, and what must be considered as a prevailing circumstance to qualify these facts, is that the victim has acted not on his own initiative, but as a mere instrument of an inadmissible police action, as the police officers could not have been unaware that their action, in order to obtain the recording of this conversation, did not have prior judicial authorisation and, therefore, was unlawful.
In order for the police to be able to organise any system of getting hold of a recording of someone else’s conversation, it is imperative that they first request and obtain judicial authorisation to intercept that person’s communications, even if the conversation is only between the criminals and their victim.
This is explained very well by the SC in the very recent judgement cited above, which transcribes the grounds of other previous judgements, to explain the reason for unlawful evidence in our law:
“It is a question of limiting the State’s zeal in the prosecution of criminal offences, of keeping the agents of authority away from the temptation to make use of means of evidence which, because of their high degree of interference in the circle of fundamental rights, are subject to constitutional guarantees designed to safeguard them. It has been rightly said that the proscription of unlawful evidence is explained by the dissuasive effect for the official State apparatus of being fully aware that it will never be able to make use of evidence obtained in violation of the constitutional rules at stake”.
If we are faced with such levels of protection when it is the police who record other people’s conversations without prior judicial authorisation, what can we say when it is private individuals who engage in this type of conduct? Should we uncritically accept that the media can freely broadcast such recordings just because they are “newsworthy”, or should we rather defend vigorously that such illegal or even criminal recordings cannot be broadcast without incurring liability?
In these days, the media’s dissemination and the very broad commentary, with the utmost naturalness, of the telephone recordings of Piqué and Rubiales, which no one even considers to be something wrong, coincide with the political scandal, which is extremely high in tone, about “espionage” (by the way, this is not an innocent term, because it is not about that but about the prospective investigation of alleged criminals. Spying is something else. Does no one see the incoherence of this? Or should we accept that the fundamental rights of some are more important than those of others?
Our society has the pending task of seriously tackling the phenomenon of so-called “media trials”. Reflection on this subject goes far beyond the scope of these lines, but it would not be a bad first step to begin to put on the table the fact that the free dissemination of recordings that the media cannot ignore that they are the result of a crime, is prohibited in our law and it should be clear that disseminating them implies incurring criminal liability and the obligation to compensate the victim.
The only alternative to maintain a minimum of coherence would be to repeal the second paragraph of article 197.3 of the Penal Code. Nobody is counting on me for that.
These are not times of great appreciation for the defence and preservation of Fundamental Rights, but those of us who are aware of their importance and transcendence for democratic freedoms have the duty to disseminate them and to thank our Courts for their incessant, demanding and very nuanced work in this field.
Lupicinio International Law Firm
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