Unhappy Families: The Privacy Perils of Covert Recording

3rd March 2020 Media Law

It's a topic which was brought to mind recently by media reports of a High Court case involving two of Britain's richest men, the billionaire brothers Sir Frederick and Sir David Barclay. 

Over the course of their lengthy careers, they have acquired a number of well-known enterprises, including the likes of London's Ritz Hotel, the Daily Telegraph newspaper and the Yodel parcel delivery firm.

In courtroom proceedings which wouldn’t have been out of place in an episode of “Dallas”, Sir Frederick and his daughter, Amanda, alleged that their private conversations were surreptitiously recorded over several months by a bug hidden in a room at the Ritz. They asked the Court to make a “non-disclosure” order.

They claimed that Sir David's three sons – Alistair, Aidan and Howard – as well as Aidan’s son, Andrew, were behind the covert recording because of a family dispute. The dispute concerns wealth managed by a series of family trusts and the governance of family businesses.

Sir Frederick and his daughter have brought the legal action against their four relatives, and another individual, Philip Peters, who “holds a board position” in the family group of businesses. They allege misuse of private information, breach of confidence and breach of data protection laws. 

The Judge refused to make the requested non-disclosure order - but proceedings are ongoing.

These days, it's not unusual for allegations of covert recording to crop up in disputes. People record conversations for a variety of different reasons ranging from a basic desire to have their own “proof” of what was said during an argument through to personal espionage. The impact of hearing an original recording of a private conversation can of course be more powerful than being given an account of what was said. Recording private conversations might not be “hacking” or theft, but the ethics of surreptitiously recording private discussions are obviously not black and white. Equally, secretly recording private conversations between individuals can be a legal minefield.

The law and regulatory rules which apply to secret recordings depend on the specific circumstances of the case. In one court case involving the secret recording of a musician talking about his love life, the Court of Appeal decided that “the publication of a covert tape recording of a private conversation involves a breach of confidentiality”. The Barclays case obviously demonstrates that if a private individual records another person it might equally engage other laws, such as privacy and data protection. In a commercial context, businesses sometimes want to record telephone calls, but they must satisfy various legal requirements concerning interception and data protection. Journalists sometimes record private conversations during investigations, and generally rely on “public interest” arguments to justify their activities.

The proliferation of mobile phones and other devices has certainly made it easier for people to record private discussions. Perhaps the ease of recording makes the temptation to do so all the greater.

Only last year, an Employment Tribunal was asked to consider the case of a woman who secretly recorded a meeting with an HR director at the charity where she worked.

Interestingly, the tribunal chairman recognised the impact of technology on a person’s ability to make a covert recording. Whereas, previously, "an employee – or for that matter an employer – had to go to a great deal of trouble" to capture something on tape, he said, "most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on."

The law certainly does not prohibit secret recording of private conversations in all circumstances. These days people seem to record meetings with their children’s school teachers, meetings with their line managers and in numerous other contexts. However, the golden rule must be that it’s sensible to think carefully before hitting the 'record' button. 

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Nick McAleenan is a Partner located in Manchester in our Media & Reputation Management; Data Protection & Privacy department

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