PRIVACY

Recording phone calls Sonko-style should be illegal

Legislation does not quite specifically address this issue enough.

In Summary
  • Despite legislation offering privacy and protection of personal data from big data, cellphone companies and government, there is a gap when the perpetrator is an individual.
  • There is also the slight concern whether cellphone recordings fit within the ambit of ‘personal data’.

A video of Nairobi Governor Mike Sonko being arrested has gone viral. From its shaky quality, one can safely assume it was taken by a cellphone. One can also safely assume that Sonko (and the other folks) did not consent to be filmed or for the video to be shared.

Sonko himself is famous for ‘sharing’ phone recordings of private conversations with politicians and other bigwigs. This raises the question, does Sonko, as a private individual, have the right to secretly record individuals without their knowledge and, further, share these recordings with the public. Does this amount to an infringement of one’s right to privacy?

Article 31 of the 2010 Constitution provides for the right to privacy. The recently passed Data Protection Act strengthens Article 31 by placing restrictions on the use, collection and sharing of an individual’s personal data and in so doing, it attempts to revert power and control of personal data back to an individual.

In all the ‘anti-surveillance’ laws that attempt to provide protection for personal data and privacy, the action being criminalised or protected against emanates from government, big data and/or service providers, and not private individuals. One can almost assume that the drafters of these laws never envisioned an era of social media or at the very least an era of individuals such as Sonko who have a penchant for pressing that record button.

One can argue that cellphone communication (or recordings thereof) fall within the penumbra of personal data and in the event they do not, then they aptly fall under the ‘communications’ protected by Article 31. When making a phone call, there is a presumption that the communication is private and only between the individual on one end of the line and the individual on the receiving end.

It can be argued that if someone were to leak or share a conversation between only two individuals on either end of a phone call without their consent, that would be violating the constitutional rights of either or both individuals. In the very least, they would be violating the Data Protection Act and should be prosecuted.

In an era of fake news, social media and the internet, laws requiring consent from both parties before cellphone communication is recorded, would protect individuals against an imbalance of power that would result in one party having a secret unconsented recording of another that could result in either character assassination, unwarranted criminal persecution, or even blackmail.

This presumption of privacy is however rebutted if either party acts in a manner that is inconsistent with someone who intends to be under the confines of privacy. An example would be someone having a phone conversation in a public area or in the presence of other individuals not privy to the conversation.

Other scenarios would be incidents where an individual speaks at the top of their voice to broadcast their conversation to everyone around him/her. In addition, rules of evidence and some criminal legislation provide protection for unconsented recording to investigate criminal activities or production of evidence in legal cases.

Despite legislation offering privacy and protection of personal data from big data, cellphone companies and government, there is a gap when the perpetrator is an individual. There is also the slight concern whether cellphone recordings fit within the ambit of ‘personal data’. 

In the USA, states are famously distinguished as either being one-party consent states or two-party consent states. This distinction is based on laws regarding telephone recording. In two-party consent states, both parties being recorded in a conversation must have knowledge of it and consent to it. In one-party consent states, only one of the parties needs to consent; usually, the consent of the one recording is sufficient. Where a call is initiated from a one-party consent state to a two-party one, the two-party law takes precedence.

I find that legislation does not quite specifically address this issue enough to offer a certain and uniform answer that would predict when such rights are violated. Case law is also nonexistent in this matter. So, is such a law relevant? I would find it hard to believe that legislation dealing with this matter is a non-issue in Kenya in this day and time.

In an era of fake news, social media and the internet, laws requiring consent from both parties before cellphone communication is recorded, would protect individuals against an imbalance of power that would result in one party having a secret unconsented recording of another that could result in either character assassination, unwarranted criminal persecution, or even blackmail.

Advocate of the High Court of Kenya