Recording Conversations: Is It Allowed or Not?

Questioner

My question is whether it is allowed to make a tape recording of someone without their permission.

Lawyer

In itself, secretly recording conversations is not prohibited. Articles 139a et seq. of the Criminal Code stipulate that it is in principle permitted to record a conversation. As long as you are a participant in the conversation yourself, it is legally permitted to record the conversation, even if you do not report it to the other party in advance. If a third party records a conversation, this can be qualified as criminal conduct. Think of eavesdropping or tapping. However, it is permitted for a third party to record a conversation on the instructions of another person who is participating in a conversation. Article 139a of the Criminal Code therefore prohibits the recording of conversations in which you do not participate, because this quickly leads to seriously reprehensible conduct. Under certain circumstances, it may be unlawful for a participant in a conversation towards him or her. For example, when a conversation is recorded in which very sensitive private matters are discussed. Recording such a conversation may conflict with the right to privacy, as laid down in, among other things, Article 10 of the European Convention on Human Rights. When it comes to finding the truth, the judge will weigh up the interests. In conversations between a person and, for example, an employer, social investigation or benefits agency, it usually concerns the personal situation of the person himself and not that of the other party. In the vast majority of cases, (secretly) recording a conversation between a person and a government agency or employer will therefore not be unlawful. Therefore, you do not have to give prior notice to another party if you record the conversation. The reverse does not apply. For example, a government agency may not simply record a conversation with you. The Personal Data Protection Act (Wbp) stipulates that the restriction applies that recording may only take place after prior notice. This is due to the fact that in such a case, there is quickly a systematic (automated) recording and storage of conversations. Making a recorded conversation public, such as via social media, is not allowed because it violates someone's privacy.

Lawyer

You are allowed to record a telephone conversation that you are conducting yourself - even if you do not report this to the other party. Only secretly recording such a conversation without being a participant is therefore punishable (unless you have permission from one of the participants). Whether recording a conversation without the other party's knowledge is unlawful depends, according to case law, on the circumstances of the case. The fact that the recording was made with the aim of using it as evidence and the conversation was aimed at that does not in itself make the recording of that conversation unlawful. It is also important whether the conversation took place in a business setting and did not concern matters that concern personal privacy.