Dear PAO,
I had a private meeting with my former employer regarding my unpaid salary. Afraid that my employer would later deny what was being discussed, I secretly used my cellphone to record our entire conversation, thinking that I could use the recording as evidence to support my claims in case I needed to file a labor case. My employer somehow found out and told me that I violated the Anti-Wiretapping Law because I recorded our conversation without his knowledge and consent. Since I was an actual participant in the conversation, I reckoned that I had the right to record it. Can I be held liable under the Anti-Wiretapping Law? Can I still use the recording as evidence in case I decided to file a labor case?
Nan
Dear Nan
Republic Act (RA) 4200, commonly known as the Anti-Wiretapping Law, was enacted to prohibit and penalize wiretapping and other related violations of the privacy of communication. Under Section 1 thereof, it is unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to secretly overhear, intercept, or record such communication or spoken word through a tape recorder or any other device or arrangement.
It likewise prohibits the knowing possession, replay, communication, or furnishing of transcriptions of a communication or spoken word that was obtained in a manner prohibited by the law. (Section 1, RA 4200)
In Socorro D. Ramirez vs. Court of Appeals and Ester S. Garcia, GR 93833, Sept. 28, 1995, Ponente: Honorable Associate Justice Santiago Kapunan, the Supreme Court categorically held that the Anti-Wiretapping Law applies even when the person who secretly makes the recording is himself or herself a participant in the conversation. It explained that “[t]he law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute’s intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier ‘any’.” Thus, “even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator under this provision of RA 4200.”
Too, the high court emphasized that the prohibition covers private conversations and not merely telephone or wire communications. In the above-mentioned case of Ramirez, the Court ruled that a secretly tape-recorded conversation between the parties constituted a communication covered by RA 4200. After all, the law was intended to protect the free and private exchange of communications between individuals from unjustifiable intrusion. (Ibid.)
Anent its admissibility as evidence, Section 4 of RA 4200 expressly provides that “[a]ny communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Applying the foregoing to your case, regardless of the fact that you were a participant in the private meeting, your act of secretly recording the private conversation between you and your former employer may constitute a violation of the Anti-Wiretapping Law. Stated differently, being a participant in a conversation does not, by itself, give a person the right to secretly record it.
Moreover, even if the recording contains statements that may be favorable to your claim against your former employer, you cannot simply rely on the same as evidence if it was obtained in violation of RA 4200. Applying the exclusionary rule, the recording itself may be declared inadmissible in evidence in judicial, legislative, administrative, or quasi-judicial hearing or investigation, such as in labor cases filed before the National Labor Relations Commission.
This does not mean, however, that you are without other means of proving your claims. You may consider presenting other lawfully-obtained evidence, including employment records, payroll records, payslips, written communications, demand letters, or testimony of persons who have personal knowledge of the circumstances surrounding your unpaid wages.
We hope that we were able to answer your queries. This advice is solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
