whether recording a phone call legal ?

528 votes

Hi,
If the conversation is between you and the other person, and you intend to record that conversation, there cannot be a legal action against you. Such recording is an essential piece of evidence and the same can be produced before the court in compliance to 65B of Indian Evidence Act.
Thanks.

Advocate Aditya Sharma LawRato

850 votes

Taping a call, as of now is not categorized as a crime yet. However, there are cases which show that unauthorized taping is deemed as an offence. On the other hand, as per a recent judgment, if you have recorded a call, the same can be produced by you as an evidence before the Court.

Advocate Avneesh Garg LawRato

750 votes

Recorded conversations are treated in different ways by the law depending on how the recording is obtained. Tape recordings of conversations have repeatedly been held to be admissible as evidence by courts. However, this does not automatically make telephone tapping and the recording of telephonic conversations legal.

Telephone tapping is, of course, subject to its own laws:
Section 5(2) of the Indian Telegraph Act, 1885, which grants the Government the power to order the interception of messages;
Rule 419A of the Indian Telegraph Rules, 1951, which lays down the procedural requirements which must be followed for telephone tapping to be legal;
Section 69 of the Information Technology Act, 2000, which deals with the power to issue directions for interception or monitoring or decryption of any information through any computer resource;
Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009.
Under these laws, the tapping of telephones by third parties is generally illegal, unless the procedures mandated by law are followed. Pertinently, it is possible to interpret the law to mean that tapping would be illegal even is the person whose telephone is tapped consents to the tapping.

Further, even in the case of 'consensual tapping' — which is, in all probability, illegal — privacy implications may arise. This is because when a telephone is tapped, the conversations of the person whose telephone is tapped with other people would be recorded, and those other people would presumably not have given their consent to being recorded.
If, however, the tapping of a telephone was legal, privacy implications giving rise to liability would not be an issue.

Privacy Concerns

Recording telephonic conversations — including one’s own conversations — however, is a completely different ball game, and the law is not crystal clear.

The primary legal impediment relating to the recording of telephonic conversations is the likelihood of privacy concerns arising where the recording is executed without the consent of those participating in the conversation. In general terms, the Right to Privacy has been recognised under both law and self-regulatory mechanisms including:
Tort law,
Article 21 of the Constitution of India which deals with the ‘Protection of Life and Personal Liberty’,
Depending on the technology used, the Information Technology Act — under Section 66E as well as (depending on the content of the conversations) Section 43A along with the associated 2011 Privacy Rules),
(Possibly, for women) under Section 509 of the Indian Penal Code, and
With regard to television programmes, the Indian Broadcasting Foundation’s Content Code & Certification Rules 2011.

Advocate Suman Thakur LawRato