- Business in Poland -
Recording Conversations as Evidence – Legality in Criminal and Civil Proceedings
Recording conversations as evidence involves capturing audio, and sometimes video, so that the content of statements, the course of a meeting, or the conduct of the participants can later be replayed. In business practice and litigation, a recording may have significant evidentiary value, but its use requires an assessment of how it was obtained, the purpose for which it will be used, and the risks related to privacy, personal data, and personal rights.
The question "is it legal to record conversations" does not have a single answer. A recording made by a person who participates in the conversation must be assessed differently from the surveillance of a third party, and differently again from the systematic recording of calls at work, for example in a call center, sales department, or HR department.
Recording Conversations and Criminal Liability
The primary point of reference is Article 267 of the Polish Criminal Code. This provision criminalizes, among other things, unlawfully obtaining access to information not intended for the perpetrator, including by opening sealed correspondence, connecting to a telecommunications network, bypassing security measures, or installing or using an eavesdropping device, visual device, other device, or software [1].
As a rule, a person who personally participates in a conversation does not obtain information "not intended for them". Therefore, recording conversations in which the recording person takes part will usually not meet the elements of an offense under Article 267 of the Criminal Code. The assessment may be different, however, if the recording person installs a listening device in someone else's premises, intercepts another person's communications, or records conversations in which they do not participate.
The legality of recordings does not depend solely on criminal law. Even if a recording does not result in criminal liability, making or disclosing it may infringe personal rights, trade secrets, GDPR rules, or employee obligations.
Audio Recording as Evidence in Criminal Proceedings
In criminal proceedings, evidence is taken at the request of the parties or ex officio, in accordance with Article 167 of the Polish Code of Criminal Procedure [2]. A recording may be relevant, for example, in cases involving corruption, threats, extortion, fraud, shareholder disputes, managerial misconduct, or employment matters with a potential criminal background.
Article 168a of the Code of Criminal Procedure is also important. Under this provision, evidence cannot be deemed inadmissible solely because it was obtained in breach of procedural rules or by means of a prohibited act, subject to the exceptions indicated in that provision [2]. This does not mean that every recording is automatically "legalized". The court still assesses its authenticity, credibility, context, and impact on the fairness of the proceedings.
In matters involving criminal law, it is crucial to secure the original file, metadata, device, and the circumstances in which the recording was made. Providing only a fragment of a conversation may give rise to an allegation that the context has been manipulated.
Audio Recording as Evidence in Civil Proceedings
In civil proceedings, a recording is generally admissible as evidence from another type of document containing an audio or video record. The relevant provisions include Articles 227, 232, and 308 of the Polish Code of Civil Procedure [3]. The court examines whether the recording concerns facts material to the resolution of the case and whether it has been presented in a way that allows its reliability to be assessed.
Recording conversations as evidence may be important in disputes concerning payment, contractual liability, infringement of personal rights, workplace bullying, discrimination, termination of contract, non-compete obligations, or shareholder disputes. The mere fact that a recording was made secretly does not automatically mean that it will be disregarded. However, the court may take into account how the recording was obtained when assessing principles of social coexistence, the right to privacy, and proportionality.
In practice, it is important to demonstrate that the recording has not been manipulated. A transcript, the carrier containing the source file, a description of the date and place of the conversation, and identification of the participants may all be helpful.
Recording Conversations at Work
Recording conversations at work requires particular caution. An employer who systematically records employees' conversations, for example with customers, should have a legal basis for data processing under Article 6 GDPR, comply with the information obligation under Article 13 GDPR, and demonstrate the proportionality of the purpose [4]. The provisions of the Polish Labour Code concerning respect for an employee's dignity and other personal rights are also relevant, in particular Article 111 of the Labour Code, and in the case of employee monitoring, Articles 222 and 223 of the Labour Code [5].
Employee monitoring should not lead to constant, unrestricted control of private conversations. If recordings are intended to support service quality, safety, complaint handling, or the protection of claims, the rules should be set out in a collective bargaining agreement, workplace regulations, or an announcement, as well as in procedures or privacy notices. The employee should know who is recording, why, for how long, and who has access to the recordings. In the case of monitoring, the employer should inform employees of its introduction within the time limit provided for in the Labour Code.
A separate issue is a recording made by an employee without the knowledge of a supervisor or co-worker. Such evidence from recordings of employee conversations may be used in proceedings, especially where it serves to prove workplace bullying, discrimination, unlawful pressure, or infringement of employee rights. This does not, however, exclude the need to analyze disciplinary, civil, and reputational risks.
Three Practical Exceptions When Assessing the Legality of Recordings
In practice, three situations are most often analyzed. They do not provide a simple exemption from liability, but they help assess the level of risk:
- a recording of a conversation in which the recording person participates - as a rule, this is not eavesdropping within the meaning of Article 267 of the Criminal Code, although it may infringe privacy or personal rights;
- a recording made to protect a legitimate interest - for example, to defend against unlawful conduct or to prove workplace bullying, a threat, corruption, or abuse;
- a recording assessed by the court in terms of proportionality - the court may admit the evidence if its importance to the case outweighs the manner in which it was obtained, but this depends on the specific facts of the case.
Legality of Recordings, Personal Rights, and GDPR
Recording or disclosing a conversation may infringe personal rights, such as privacy, confidentiality of correspondence, good name, or freedom of expression. Claims may be based on Articles 23 and 24 of the Polish Civil Code [6]. The risk increases when a recording is published in the media, sent to a wide audience, or used in a reputational dispute.
If a recording makes it possible to identify a natural person, it constitutes personal data. If the processing is not purely personal or household-related, GDPR provisions are relevant, especially the principles of data minimization, purpose limitation, security, and storage limitation [4]. In business, recording conversations as evidence should be stored in a controlled manner, with restricted access and a clear litigation or compliance purpose.
How to Secure a Recording as Evidence
Before using a recording in a dispute, it is worth organizing the evidentiary material. In particular, you should:
- keep the original file and carrier without editing the recording;
- prepare a transcript and mark the passages relevant to the case;
- describe the date, place, participants, and circumstances of the conversation;
- avoid publishing the recording outside the proceedings unless it is necessary;
- assess criminal, civil, employment, GDPR, and reputational risks.
This material is for informational purposes only and does not constitute legal advice. In cases where recording conversations may become evidence or a source of liability, Kopeć & Zaborowski Law Firm analyzes the legality of recordings, litigation strategy, and the risks of disclosing the material. To discuss a specific situation, you can contact the firm through KKZ.
FAQ - Recording Conversations as Evidence
Can you record conversations without the other person's consent?
If the recording person is a participant in the conversation, the recording itself will usually not constitute an offense under Article 267 of the Criminal Code. This does not, however, mean complete freedom to use the recording. Privacy, personal rights, personal data protection rules where applicable, and the purpose of use must all be assessed.
Can secret recordings be admitted as evidence in court?
Yes, this is possible in both criminal and civil proceedings. The court assesses the relevance of the recording, how it was obtained, its authenticity, and the proportionality of the interference with the rights of other people.
Is recording conversations at work legal?
It may be legal if there is a legal basis, the purpose is justified, employees are informed, and the scope of recording is proportionate and described in accordance with the requirements of the Labour Code and GDPR. Constant and unrestricted recording of conversations may infringe employees' rights.
Can an employee record their supervisor?
Such a recording may be admissible as evidence, especially where it is used to protect the employee's rights, for example in a workplace bullying or discrimination case. Each case, however, requires an assessment of legal and employment-related risks.
Is publishing a recording online legally safe?
It usually involves significant risk. Publication may infringe personal rights, personal data, trade secrets, or the reputation of individuals and companies. Presenting a recording to a court is different from making it publicly available.
What is the best way to present a recording as evidence?
It is best to keep the original file, prepare a transcript, indicate the circumstances of the conversation, and avoid editing. If the authenticity of the recording is disputed, an expert opinion in phonoscopic analysis or digital forensics may be obtained.
Bibliography
- Act of 6 June 1997 - Criminal Code, Journal of Laws 1997 No. 88 item 553, as amended, Article 267.
- Act of 6 June 1997 - Code of Criminal Procedure, Journal of Laws 1997 No. 89 item 555, as amended, Articles 167, 168a, 170.
- Act of 17 November 1964 - Code of Civil Procedure, Journal of Laws 1964 No. 43 item 296, as amended, Articles 227, 232, 308.
- Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 - General Data Protection Regulation, Articles 2, 5, 6, 13.
- Act of 26 June 1974 - Labour Code, Journal of Laws 1974 No. 24 item 141, as amended, Articles 111, 222, 223.
- Act of 23 April 1964 - Civil Code, Journal of Laws 1964 No. 16 item 93, as amended, Articles 23 and 24.
Author: adw. Maciej Zaborowski, Managing Partner
E-mail: m.zaborowski@kkz.com.pl
