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Nirali Nayak   26 June 2021

Recording call without consent

My telephonic conversation where I was talking about ending my marriage as I was not happy in it, was recorded by a person on another side without my consent or knowledge. He also threatened me on that basis and blackmailed me to leak that recording. Is it legal in India to do so? Can I take any action against him?

 4 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     26 June 2021

Taping of telephonic conversation is illegal by any third party in India. ... Due to the privacy concerns, even if someone allows or consents to their telephone being taped and conversations being recorded, it remains illegal as the second party to the conversation has not consented to tape. You can approach police with evidence

G.L.N. Prasad (Retired employee.)     27 June 2021

Please come out with facts, as on what grounds there is blackmailing, and whether the receiver has recorded the message or some other third party.

T. Kalaiselvan, Advocate (Advocate)     30 June 2021

These days most of the smart phones are having the facilities to record all the calls automatically and this fact is known to the authorities concerned too.

However if this  act of recording the conversation by the receiver is termed to be illegal then the automatic provision installed in the smart phones is also considered as an illegal act and no phones can be sold with such facility.

Moreover the recording of conversation by the parties to the call is not considered as an illegal act, however if the receiver is trying to misuse the recording for any other illegal purpose then he or she may be held liable for criminal prosecution for extortion charges or for the offences of threatening the other person and other related offences. 

Kevin Moses Paul   27 July 2021

According to the question you've asked, let me be very clear with you that at present, there is no specific statutory regime for data protection in India which would govern the clandestine recording of a phone call. In light of this rather gaping legislative void, the law applicable to situations such as recording of a phone call without knowledge is often not direct, or fully tested by judicial interpretation. This is particularly true in case of such recording being conducted by a private person as opposed to recording/tapping/interception by a governmental authority or agency of the State. In general, 'phone tapping' means secretly listening or / recording a communication in telephone in order to get information about others activities. It is also known as ‘wire-tapping’ in some countries.

It can only be done in an authorized manner with permission from the department concerned.

However, if it is undertaken in an unauthorized manner then it is illegal and will result in prosecution of the person responsible for breach of privacy.

Therefore, only the Central and the State Governments have a right to tap phones under Section 5(2) of Indian Telegraphic Act, 1885. There are times when an investigating authority/agency needs to record the phone conversations of the person who is under suspicion. Moreover, such authorities are supposed to seek permission from the Home Ministry before going ahead with such an act.

Regardless of being a Government Authority the application sent to the Home Ministry shoul contain specific reasons for recording the phone calls, and the same could be further processed only when the need for phone tapping is proved as important. But, there is legal provisions which I would like to bring into your attention as it is directly connected to the query you've asked. The provision is the Section 25 of the Indian Telegraph Act, 1885.

Section 25 of the Indian Telegraph Act, 1885 deals with - "Intentionally damaging or tampering with telegraphs".

It further states that — If any person, intending -
(a) to prevent or obstruct the transmission or delivery of any message, or
(b) to intercept or to acquaint himself with the contents of any message, or
(c) to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph lines, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof, he Shall Be Punished with Imprisonment for a Term which may Extend to Three Years, or With Fine, or With Both.

Therefore, by unlawful means and without proper approval, transmission or recording of phone calls between two persons by a thrid party or third person as such is an illegal activity, for which the offender could be imprisoned for a period of upto 3 years or finer and even both depending upon the court's discretion.

Hope It Helps

Kevin M. Paul

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