Secret Recordings and The Law

The big story coming out of the Sunday papers this week has been the Sunday Independent’s “sting” on two Labour TDs, where they were secretly recorded giving their views on liberalisation of the law on abortion. The story doesn’t amount to much really; it hardly comes as a surprise to learn that Labour are broadly pro-choice, and the recordings simply reflect that position, albeit in slightly less guarded language than might be used in more public discussions. Still, the story may have provided ballast for the Sindo’s conviction that pregnant women have options other than abortion, posing in their underwear for Life Magazine being chief amongst them.


A secondary issue has been the ethical questions surrounding secret recordings. It wouldn’t do to be too moralistic here: not long ago, Hugh Grant (of all people) was widely hailed as a hero for making a secret recording,  without too much hand-wringing about invasion of privacy. If secret recording is a legitimate tool of investigative journalism, then we can’t change the rules when we don’t like the kind of story being reported.

As to the law, there is not much out there on the subject of recorded conversations. Interception of phone calls is forbidden by the Postal and Telecommunications Services Act 1983, as amended, but this applies to phone tapping rather than to recording by one of the participants, which is expressly excluded, even where the other party is unaware. And in any case, the materials published this weekend were transcripts of face to face conversations, not of phonecalls. There may be questions of admissibility of secretly recorded conversations as evidence in court, (though the The Barristers Professional Conduct Tribunal has ruled that a recording of a phone call  is admissible in proceedings for professional misconduct) , but there is nothing illegal about the simple fact of making the recordings.

Voice recordings are personal data, and in the normal course of events, it will be contrary to the provisions of the Data Protection Acts to publish them. However, the Data Protection Acts provide for exemptions for journalistic purposes. While one may quibble as to the quality or merit of the story in question, there is no doubt that the Sunday Independent can say they reasonably believed that the publication would be in the public interest.

Interestingly, this exemption applies not just to the publication of such data, but also to section 4 of the Act, which provides for the right of access to personal data. I mischievously suggested earlier today that the two TDs recorded could make a subject access request to the Sunday Independent, to see what else the paper had on them. Were this possible, I imagine there would be a very welcome increase in interest by our politicians in the Data Protection Act, not to mention an increase in support for proper funding of the Office of the Data Protection Commissioner. However, the exemption in the legislation is quite clear in its application, and for good reason. Freedom of speech includes freedom to remain silent or to speak at a time of one’s choosing. If individuals could compel media organisations to hand over copies of all information held about them, this would effectively end all investigative journalism. Not only that, but there is the rather chilling possibility of dangerous criminals sending in requests for data held on them by crime reporters.

As to the person making the recording, it is entirely up to the newspaper whether they wish to reveal her identity. Media industry practice on protection of sources means that this will probably not happen. However, if another news outlet was minded to name her, it would be as entitled to do so as the Independent was to print the transcripts in the first place. Whether that would be good for journalism is a different matter.

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