What’s the admissibility of investigators’ covert recordings in Europe? Examining courts’ sticky legal and ethical issues

In May 2019, two major German media publications, DER SPIEGEL and Die Süddeutsche Zeitung, released parts of a video purportedly showing Heinz-Christian Strache, then vice chancellor of Austria, and Johann Gudenus, former deputy mayor of Vienna, solicit illegal campaign support from a supposed niece of a Russian oligarch.

The video was recorded covertly two years before its publication in the run-up to the 2017 Austrian general election that resulted in the party of the two men — the right-wing populist Freedom Party of Austria — forming a governing coalition with Chancellor Sebastian Kurz’s conservative Austrian People’s Party.

On the tape, the “Russian” woman is heard seeking investment opportunities for 250 million euros, which she claims “cannot be deposited at a bank.” Strache is then seen suggesting possible mutually beneficial solutions and then alluding to illegal financing channels for his party and trying to convince her to buy one of Austria’s most widely circulated newspapers to influence voters in his favor — all, he suggests, in exchange for casino licenses and contracts for highway construction. (See The Strache Recordings – The Whole Story, by Maik Baumgärtner, Vera Deleja-Hotko, Martin Knobbe, Walter Mayr, Alexandra Rojkov and Wolf Wiedmann-Schmidt, Spiegel International, May 5, 2019.)

The publication of the footage triggered a storm of public outrage that wiped away Austria’s government barely 24 hours later and will undoubtedly stain the two politicians’ reputations for years.

It also raised questions about the legality of covert recordings in the investigation of fraud and corruption cases in Europe, where different courts have voiced various opinions and rulings on this matter.

In this case, the video’s publication exposed those behind the video to legal attack. Strache’s legal team said the production and distribution of the video was illegal because it was done without Strache’s consent, and it breached his inalienable right to privacy. He eventually sued several publications. (The identity of the person(s) who produced the video remains unclear.)

However, in May 2020, the Austrian Supreme Court decided that the freedom of the press in service of the public interest — a fundamental, constitutional legal principle — outweighed Strache’s right to privacy, which thereby rendered the distribution of the video lawful.

Key to the court’s decision was that publication of the footage served the public interest because the news organizations were careful to publish only selected parts of the video that contained discussions of political matters. Parts of the unreleased material were rumored to contain conversations about drugs and sex, which the publications apparently deemed irrelevant to the public interest.

So, a precedent was set in Austria: Courts will decide, in retrospect, the legality of public distribution of covert material, and the lawfulness of the acts of recording, which Strache’s legal team sought to address, won’t factor into decisions.

Even so, the legal use of secret recordings to uncover fraud and corruption in Europe may not always be so clear-cut in cases that often cross borders and legal jurisdictions.

Indeed, the Strache case highlights some of these complications. It involved an Austrian citizen who was covertly recorded in Spain, but who sued German publications. The making of the video, considered in isolation and not for its relevance to publication, falls under Austrian and German jurisdiction. To further complicate the situation, Spanish laws don’t prohibit recording someone without their consent.

In short, those producing the video had achieved their goals by swaying public opinion. But had the courts deemed the purposes of the video producers to have been different (to unduly malign Strache, for example), the legal remedy could’ve unfolded differently.

Europeans value privacy rights protection

The right to privacy remains a strong legal counterpoint to the admissibility of covert recordings as evidence in a court of law. That’s because governments’ past abuses of privacy data have led various European countries to enshrine individual privacy rights in law. Under Article 226-1 of the French Criminal Code, recording of words in private circumstances without consent is a violation of intimacy — subject to one year’s imprisonment and a fine of 45,000 euros. Section 201 of the German Criminal Code provides for a prison sentence of up to three years or a fine for unlawfully making an audio recording of the privately spoken words of another.

Following the Strache affair, the German data protection commissioner criticised DER SPIEGEL and Die Süddeutsche Zeitung for publishing the footage as a privacy violation regardless of the public interest aspect of the story. (See German data protection agency criticizes Austrian Ibiza video, DW.)

The law of England and Wales is traditionally more permissive. For instance, there’s no common law right to privacy, and the covert recording of others for personal reasons isn’t a crime in England and Wales. On the other hand, even after Brexit the U.K.’s law is impacted by the European Union General Data Protection Regulation (GDPR). Under Section 170 of the Data Protection Act 2018, which enacted the GDPR’s requirements into U.K. law, it’s an offense to “obtain or disclose” personal data without consent, which might seem to preclude covert recording.

Like privacy rights and data protection, the issue of entrapment could also make covertly recorded conversations inadmissible if they lead and manipulate a target into self-incrimination.

In Hungary, a court dismissed a 20-year-old case because the recording used as evidence was held to have framed the conversation in an overtly manipulative, unethical manner and was designed to prompt a desired response. (See Miskolci Jogi Szemle, by Anna Szendroi, The Legal Review of the University of Miskolc, 2019.)

However, successful admission of sound recordings is far from unprecedented on the Continent. And the concept of a greater good prevailing over conflicting laws is a well-established legal tradition in European criminal law and can result in the admissibility of evidence that was obtained illegally.

In France, The Court of Cassation, one of the country’s highest appellate courts, ruled in 2010 that there was no provision for criminal judges to exclude evidence “solely because” it was gathered in an illegal manner. (See Judicial Admissibility of Surreptitious Sound Recordings, Nicolas Guerrero, Village de la Justice, Feb. 27, 2012.)

Woerth-Bettencourt affair

The 2010 Woerth-Bettencourt affair marks an important milestone in the development of French law in this respect. It also underscored how civil and criminal courts in the same country can take diametrically opposing views over how to weigh privacy against the common good.

The case involves a butler in the employment of Liliane Bettencourt, then-heir of the L’Oréal cosmetics group, who covertly made recordings in Bettencourt’s private hotel. [See Judgment n ° 497 of January 31, 2012 (11-85.464) - Cour de cassation - Criminal chamber.]

Leaked in July 2010, the recordings revealed strong links between Bettencourt’s financial administrator, Patrice de Maistre, and Éric Woerth, then minister of economy and treasurer of the ruling Union for a Polar Movement (UMP) party. (See Bettencourt case: what the recordings say, by Eric Nunès, Le Monde, June 30, 2010.)

The recording put a spotlight on undeclared bank accounts in Switzerland and the Seychelles, leading to Bettencourt admitting to tax evasion. It also led to a separate enquiry into influence peddling and illegal funding of then-President Nicolas Sarkozy’s 2007 campaign to win re-election. Sarkozy was found guilty earlier this year of attempting to bribe a judge in connection with this case. (See Bettencourt scandal: Key players, BBC, Oct. 7, 2013, and Former French President Nicolas Sarkozy Found Guilty Of Corruption, by Scott Neuman, NPR, March 1.)

In January 2012, the Criminal Chamber Court of Cassation ruled that transcripts of the recordings, including conversations between Bettencourt and her lawyer, were admissible as “evidence which can be discussed in an adversarial manner.” [See Judgment n ° 497 of January 31, 2012 (11-85.464) - Cour de cassation - Criminal chamber.]

The court thus set a precedent that covert recordings of an individual by a natural person “without direct or indirect intervention of a public authority” could be admitted as evidence of their crimes, disregarding the rights to privacy and professional confidentiality. (See Anthony Bem’s blog entry on LegaVox.fr, Freedom of proof of criminal offenses: admission of illegal audio recordings, modified April 9, 2012.)

It held that proof of criminal offenses provided in such a way might in some cases outweigh respect for both private life and professional confidentiality, and could then be fairly admissible as long as the replying party is given sufficient time to prepare a defense. (See The proof is free in Criminal Law, Brochard Business Law Firm.) The Bettencourt case is widely cited as a situation in which justice outweighs privacy rights. (See Clandestine recording with Vincent Crase: Alexandre Benalla files a complaint, Sarah Ugolini, RTL, May 12, 2019.)

Opposite French ruling

In contrast, the Civil Chamber of the Court of Cassation ruled in October 2011 to uphold the right to privacy in civil law and hence quashed a July 2010 judgment by the Paris Court of Appeal that Médiapart and newspaper Le Point had acted in the public interest by disseminating the Bettencourt recordings. (See Bettencourt case: The Court of Cassation does not consider the publication of pirate recordings to be legitimate, by Franck Johannès, Le Monde, Oct. 7, 2011.) The ruling maintaining the primacy of the right to privacy was upheld in appeals brought by the publications, leaving the media companies little choice but to appeal to the European Court of Human Rights. (See Mediapart takes Bettencourt censorship case to European Court of Human Rights, by François Bonnett, Mediapart, July 3, 2014.)

Indeed, legal arguments over covert recordings are rarely cut and dried as illustrated by the Philips and Sony vs. Sarl Avantage (2005 to 2011) litigation. It ultimately set a precedent that covert recordings couldn’t be admitted as evidence and, by extension, that all evidence considered in civil cases must be gathered fairly. (See Remarks recorded without the knowledge of their author are not proof, latribune.fr, Jan. 17, 2011.)

This was an industrial suit that Avantage-TVHA, an electronics supplier, brought in 2005 against international electronics producers Philips and Sony, in which the Competition Authority found that the accused companies had colluded in 1997 and 1998 to set prices charged by all wholesalers and retailers at a minimum level. (See Consumer electronics: the Competition Council sanctions … Autorité de la concurrence, Dec. 7, 2005.)

The plaintiff submitted recordings of conversations between a company representative and suppliers and wholesalers as key evidence of malpractice, which led the defendants to appeal against the admission of unfairly collected evidence. (See the Cour de Cassation records, June 3, 2008.)

In 2007, the Paris Court of Appeal upheld the Competition Authority’s ruling that the recordings couldn’t be rejected simply because Avantage had collected it illegally. (See the Cour d’Appel de Paris records, June 19, 2007.) It was also noted in the Paris Court of Appeal records that the evidence had been submitted to adversarial proceedings, during which Avantage’s suppliers had acknowledged and even clarified the recordings’ content.

However, in 2008, the Court of Cassation returned the case to the Court of Appeal, stating that it had contravened the principle that secret recordings were unfair and inadmissible as evidence, thus violating Article 6 of the European Convention on Human Rights on the right to a fair trial. (See the Cour de Cassation records, June 3, 2008.)

Despite different judges on the bench, the Paris Court of Appeal returned to its original ruling, holding that the defendants hadn’t claimed that the trial was unfair — simply that the evidence of the recordings couldn’t be admitted and that indeed use of the recordings as evidence by a small business against a cartel of established producers wasn’t disproportionate “to the ends pursued by economic law.” (See the Cour d’Appel de Paris records, April 29, 2009.)

Despite this further deliberation, a plenary session of the Court of Cassation again quashed the Court of Appeal’s ruling in 2011 because, in their interpretation of the European Convention on Human Rights and Article 9 of the Code of Civil Procedure, admissibility was conditional on the lawful collection of evidence. [See Judgment n ° 587 of January 7, 2011 (appeals n ° 09-14.316 and 09-14.667) - Cour de cassation - Plenary meeting, Cour de Cassation.]

Further complicating the process is that the French civil code does allow some room for civil judges to interpret the concept of fairness in evidence collection. (See News of the Law of Evidence, by Charles Dmytrus, Village de la Justice, March 21, 2014.) And conclusions might vary depending on the level of the court.

A labor court might be more receptive to arguments about the relative methods available to employers and employees, but higher courts will likely focus more on fundamental rights, such as the right to privacy in a civil litigation context. (See Clandestine recording: the new weapon for employees? by Laurence Neuer, Le Point, May 14, 2013.)

German courts differ on criminal and civil cases

Similarly, in Germany, recordings might be considered justified for the purposes of gathering evidence in criminal cases, or defending against criminal acts. According to a Federal Labour Court decision in 2013, the civil code doesn’t explicitly prohibit the admission of illegally obtained evidence. Judges must decide whether the information gained through covert recordings outweighs the violation of data protection law. (See Conversation recordings unsuitable as evidence? by Martin J. Haas, ANWALT.DE, March 24, 2014.)

However, precedent suggests that in civil cases the right to privacy is strongly favored over other considerations, including labor cases, and even when an unauthorized recording is admitted, the risk of prosecution for making it remains. (See sidebar "German courts’ low tolerance for covert recordings" at the end of this article and Criminal liability for ‘secret’ image and sound recordings, by Elis Jochmann, ANWALT.DE, March 31, 2020.)

Admissible if no alternative way

One ground for courts’ leniency in allowing for covert recordings is when investigators can’t collect evidence in any alternative way. (See Conversation recordings as evidence? by Thilo Reimers.) This is based on the concepts of self-defense and necessity in the German Criminal Code (articles 32 and 34 respectively).

In the code, “necessity” applies as a justification when a person faced with danger to “life, limb, liberty, honour, property or another legal interest,” sees the breaking of the law as their only viable option to defend themselves, including by recording a threat.

Separately, the court might also recognize the necessity of the recording as a justification to protect legal interests if no other means of gathering evidence is available. (See “Conversation recordings as evidence?”)

This concept is also contained in a British law that says recordings must refer specifically to the individual involved, be relevant to the case at hand and not rendered redundant by the existence of other evidence. (See Is it possible to hit the stop button on covert recordings? Becky Brook, Burnetts, Aug. 13, 2019, and Audio Recordings Law – Can my employee record our conversations? by Mark Roby, Stephens Scown, updated Sept. 20, 2020.)

Similarly, according to the Czech Civil Code, a voice recording might be made without the subject’s consent in cases where the recording is to be used to protect the rights or legally protected interests of others but only where the recording is used “reasonably” if in conflict with the legitimate interests of the subject(s). (See Act No. 89/2012, Czech Civil Code.)

Fundamental court evidence in Czech courts

Czech courts also consider covertly recorded evidence is fundamental to a case that can’t be proven otherwise. (See Use of the interview record as evidence according to the legislation from 1 January 2014, profiprávo.cz; and Admissibility of illegally obtained evidence in civil proceedings through the eyes of the Supreme and Constitutional Court, by Jan Krampera and Paulína Macháčová, epravo.cz, Nov. 6, 2019.)

In 2018, the Czech Supreme Court ruled on a case involving an employee who was made redundant and attempted to blackmail his manager to stay employed at the company. The manager, however, anticipated this and recorded their meeting. The employee sued over the validity of the initial dismissal and the subsequent termination of employment. The voice recording, however, proved to be inadmissible because the testimony of witnesses presented at the meeting was deemed sufficient. (See Czech High Court, file no.   21 cdo. 1267/2018.)

In Czech criminal litigation, a proportionality test is applied to assess evidence such as secret recordings. This means weighing it against the fundamental rights of the accused and examining whether there were other means of obtaining the necessary information to clarify the criminal offense.

Furthermore, it means determining the suitability or ability of the evidence to achieve a legitimate aim. Most evidence therefore fulfills this criterion because the very proposal of the use of a covert voice recording as evidence is indicative of the legitimate aim of clarifying a crime, as stipulated by Chapter 5, Section 89 of the Code of Criminal Procedure. (See the Code of Criminal Procedure of the Czech Republic, and Usability of private audio and video recordings as evidence in criminal proceedings, by Petra Zaoralová, Bulletin-advokacie.cz, Dec. 12, 2017.)

In civil law cases in the Czech Republic, the principle of proportionality also manifests itself through the concept of a “weaker” party. If the covert voice recording is used as evidence in protection of the party considered “weaker” upon assessment and benchmarking of the rights and interests of those involved, i.e. the “principle of proportionality,” then the recording might be admissible. (See Czech high court, file no. 21 cdo. 1267/2018.)

Jurisdictional battles

As a multi-jurisdictional incident, the Strache case was perhaps simplified to some extent because covert recording isn’t illegal in Spain. However, cross-border elements often add a degree of complexity.

At first glance, some investigators would balk at the apparent risks carried by the submission of covert recordings unlawfully produced in one jurisdiction to courts in another jurisdiction.

In France, for example, the Blocking Statute imposes a six-month prison sentence and a fine of up to 18,000 euros for individuals and 90,000 euros for legal entities that produce or disclose information relating to “economic, commercial, industrial, financial or technical matters” as evidence in foreign judicial proceedings.

The idea behind the law is to protect French nationals from U.S.-style discovery procedures, essentially blocking the transfer of certain information from French jurisdictions to the U.S. (See The French Blocking Statute and Cross-Border Discovery, by Ela Barda and Thomas Rouhette, Defense Counsel Journal, IADC, Feb. 7, 2020.)

Such broad wording is likely to bring recording, covert or otherwise, under the ambit of the statute. Even more concerning for would-be investigators are proposals to increase the penalties to two years imprisonment and fines of 2 million euros and 10 million euros for individuals and corporates, respectively.

Yet despite the high-stakes penalties and wide ambit, the French Blocking Statute has only been enforced once. In 2007, a French lawyer who was working for the California Department of Insurance tricked a former director of French mutual insurance company MAAF to obtain information. The French Supreme Court upheld lower court rulings that this was effectively a violation of the French Blocking Statute and fined the lawyer 10,000 euros. (See “The French Blocking Statute and Cross-Border Discovery.”)

This controversial decision hasn’t yet been followed, but it serves as a useful reminder of the rationale behind the statute. Some trial lawyers have suggested that the statute wouldn’t be enforced against a party wilfully submitting evidence outside of foreign discovery procedures. (See Article: September 2019: French Defenses Against Foreign Local Proceedings May Be Getting a Boost, quinn emanuel trial lawyers.)

As such, if a covert recording made in France conforms to a situation where it wouldn’t be deemed an unlawful activity, such as being necessary in defense of rights, it seems unlikely that the Blocking Statute would be enforced.

Balance of privacy rights and evidential certainty

Fraud examiners might not consider covert recordings as potentially game-changing tools. They and other investigators could worry about the risk of prosecution for making or using covert recordings, particularly in civil cases, where public interest arguments are often less applicable, even after they’re successfully admitted in court.

Although many jurisdictions are careful to protect individual privacy rights and rightfully deter unscrupulous recordings, these same jurisdictions also recognize the important role covertly recorded material can play in ensuring access to justice and in securing rights and legitimate interests.

However, the local context and specific details of each case are pivotal. Ethical investigators recognize the nuanced situations where clients’ rights are under threat and putting unambiguous evidence before the court is the only recourse.

The amount of time, skill and resources it takes to successfully orchestrate an admissible recording should ensure that all other options to obtain the relevant evidence definitely have been exhausted first. In cases where these conditions have been met, investigators should be bold in their consideration of covert recordings, as long as the act doesn’t go beyond what’s required to achieve this aim and where means are proportionate to the rights of other parties.

In such situations, clients rely on highly experienced investigators who understand the balance between privacy rights and evidential certainty and who exercise sound judgment. Strache discovered this to his detriment.

Kieran Porter, CFE, is a director at Elicius Intelligence in London. Contact him at kieran@elicius.co.uk.

German courts’ low tolerance for covert recordings

A range of cases strongly demonstrate the German courts’ low tolerance for the justification of illegal recordings in the context of employment relationships: (See Jurisprudence on § 201 StGB, dejure.org.)

• Bavaria Higher Administrative Court (16a D 13.253, 2014 found a civil servant’s dismissal to be correct after his employer discovered that he’d made secret recordings of colleagues on 42 occasions. (See openJur.)
• Rhineland-Palatinate Labour Court (2 Sa 27/17, 2017) rejected an appeal against dismissal from an employee who had recorded a meeting between the company’s Works Council and a potential investor. (See IWW Institut.)
• Cologne Higher Administrative Court (26 K 5732/10, 2010) rejected an appeal against dismissal from an epileptic employee for having recorded three meetings with colleagues, including a superior whom he claimed had bullied him. (See openJur.)
• Rhineland-Palatinate Labour Court (7 Sa 220/15, 2015) rejected a suit against unfair termination from an employee, who’d recorded a meeting in which a superior attempted to persuade her to cancel a reintegration period after an illness. (See IWW Institut and Caution trap: Secret recordings lead to termination without notice.)