WAnyone who unlawfully records a conversation may be in violation of the Data Protection Act (DPA), not to mention the Criminal Code (SCC).
Application of the Data Protection Act and the Criminal Code
When recording conversations, personal data is processed, which means that the Data Protection Act applies. However, the recording of conversations is also regulated in the Criminal Code (SCC). Therefore, both pieces of legislation apply. As a result, in the case of unlawful recording of conversations, penalties may be imposed under the SCC, but at the same time the FADP also applies. Under the FADP, the persons whose data is processed (the data subjects) may have grounds for legal action. The graphic overview of the criminal and civil law consequences of recording a conversation illustrates the interplay between the FAPD and the SCC.
Recording of non-telephone conversations
Unless they have the consent of all those involved, anyone who eavesdrops on a private conversation using a bugging device or who, even as a participant, records a conversation on a recording device commits an offence under the Criminal Code (Art. 179bis and Art. 179ter SCC) and may therefore be liable to prosecution.
Avoiding prosecution therefore hinges on consent. The consent must be as clear and transparent as possible about the recording of the conversation and the purpose of the recording. It is important that consent is obtained before recording so that a data subject has the chance to object to the recording.
Recording of telephone conversations that is not considered an offence
Under the SCC, the recording of telephone conversations does not constitute an offence in the following two cases:
- When conversations with emergency, rescue and security services are recorded (Art. 179quinquies para. 1 let. a SCC) and
- When conversations in business dealings that involve orders, contracts, reservations and similar business transactions are recorded (Art. 179quinquies para. 1 let. b SCC).
As far as data protection legislation is concerned, these exceptions under the SCC mean that grounds for justification can be invoked under Article 31 paragraph 1 FADP. Therefore, the consent of the data subjects in the two aforementioned cases is not necessary.
Recording of telephone conversations considered as a criminal violation
However, Article 179quinquies paragraph 1 letter b SCC refers to very specific types of conversation. According to this provision, a call can only be recorded without the consent of the data subject if it concerns orders, contracts, reservations and similar business transactions. During the deliberations in the National Council, it was made clear that these ‘transactions’ fell exclusively under the heading of 'bulk business'. The reason given for not informing data subjects about a recording or obtaining their consent in these cases was that these transactions often had to be processed quickly and that it would be too time-consuming to provide such information in several languages (e.g. in the tourism industry).
The exceptions provided by Article 179quinquies paragraph 1 letter b SCC are therefore limited to conversations that relate exclusively to specific business transactions that occur in large numbers every day and where there is a certain time pressure for their processing. Thus, the recording of calls made via a ‘telephone ordering service' or a 'telephone reservation service' clearly falls within the exceptions covered by the provision. If, on the other hand, the call concerns a complaint or similar, recording the conversation without obtaining the consent of the conversation participant is not permitted. The same applies, for example, to complex contract negotiations conducted by telephone. In such a case, it is reasonable to inform the data subject(s) that it is planned to record the conversation.
The recordings that can now be made without risk of prosecution for failure to inform the data subject must be for a specific purpose: they may only be used to secure evidence. In particular, the disclosure of these recordings to third parties remains an offence. It should be emphasised that listening to these recordings is only lawful for the purposes of gathering evidence. This rules out the analysis of recordings made on the basis of Article 179quinquies paragraph 1 SCC, for example, for marketing purposes. If such evaluations are necessary or if the recordings need to be used for training purposes or for monitoring the sales techniques of employees, the data subjects must be informed beforehand, as explained above.
Rights of the data subjects
If you believe that a conversation of yours has been (unlawfully) recorded, you can ask for information about the recording. You have the right to know what data is stored about you, for what purpose and where this data comes from. If recordings are unlawful under data protection law, you can have the recording deleted or corrected and claim compensation. Click here to find out how to submit a request for information about a recording.
If you believe that a recording of a conversation is an offence under the Criminal Code, you should contact the police to file a criminal complaint. In such cases, the provisions of criminal law apply and not those of the FADP.
Last modification 19.06.2023