Can you be recorded without your consent? Here is what The Law has to say.

Can you be recorded without your consent

A cacophony of content on the internet, in this modern age, is characterised by footage taken by bystanders or witnesses capturing moments of vulgarity, corruption, racial slurs, poor service delivery or physical altercations in which the majority of the victims in these videos are completely unaware. In these instances, the victims have not given their permission to be recorded and thus an analysis should be made as to whether this is permissible by the law.

‘Recording’ has different categories and a particular focus should be placed on audio and video recordings. Audio recordings entail recordings of public speakers at seminars, recordings of phone calls or recording a verbal conversation, in most cases, without the party’s consent. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (known as RICA) states that no person may record a conversation without consent and such recording is only lawful when:

  • You have written consent of one of the parties to the conversation; and
  • The recording is necessary for the carrying on of a business; and/or
  • You are a party to the conversation/communication.

Direct video recording refers to the instance in which a face-to-face conversation is being recorded between a person and yourself. The fact that you are a party to the conversation legalises such recording and renders it permissible. It is worth noting that recordings of an altercation in a mall or airport, whether you are involved or not, is legal as it is a public place.

Indirect communication includes speech, moving images and data. It is worth noting that Zoom meetings and Skype conversations, despite seeming like direct communication, are indirect as they are conducted through an online telecommunications service. Thus, you would need to be a part of the engagement or have been provided with the necessary consent to the video or conversation from one of the parties. The above-mentioned will be considered illegal if:

  • The recording is through an interceptive method usually referred to as “bugging” or a “tapping” device; and/or
  • You are not a party to the conversation and not included in it i.e. not a sender nor recipient; and/or
  • Concealing or hiding for purposes of spying on the parties and recording them without them being aware of it.

Given the abovementioned, one should be wary of what renders recording to be permissible by law to avoid any act that could lead to unnecessary legal implications.

Should you require any assistance with the legal aspects of the recording of communications and The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, do not hesitate to contact us.



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