You may record a conversation for various purposes such as for protection or as a keepsake, and the conversation may be recorded without the consent of the other party to the conversation. Depending on whether you are acting in your personal capacity or on behalf of an organisation, different legal consequences may arise.
What can you be sued for?
If you are an individual acting in your own personal capacity, you will not be sued for the infringement of privacy because Singapore has not yet recognized the infringement of privacy as a separate reason to sue. But you may face the possibility of being sued for a breach of confidence if the conversation recorded contains confidential information and the confidential information within the conversation has been used or disclosed by you.
The law of confidential information
The law of confidence has been officially recognized in Singapore, as seen in section 6 of the Copyright Act (Cap 63, 2006 Rev Ed) which states: ‘Nothing in this Act shall affect the operation of the law relating to breaches of trust or confidence.’
It is used to prevent a person from disclosing confidential information that was given to him in confidence and on the express or implicit understanding that the information should not be disclosed to others.
Elements to satisfy before liability can be found:
For you to be sued for breach of confidence, the following elements regarding the information given in the conversation must be satisfied:
(1) the information must possess the necessary quality of confidence;
(2) the information must have been imparted in circumstances that impose an obligation of confidence; and
(3) there must be unauthorized use of the information to the detriment of the person who communicated the information to you.
The burden lies on the person who was conversing with you (or owner of the confidential information) to prove that all elements are satisfied for liability to be established.
Under what circumstances can you be sued?
If for example you record phone calls that contain merely gossip or information relating to scandalous or immoral material, the law will not protect them. That is to say, a conversation about celebrity gossip will not be considered confidential and therefore, you will not be sued for recording the conversation without consent.
However, if the information conveyed in the conversation relates to technical, commercial and personal matters and
- The information is not already available to the general public;
- The information is private to the person who discloses it, even though the same information may be obtained if other persons took the same effort and labour to get that information;
- The information is sufficiently well developed such that it can be defined with certainty as to what it is by any reasonable person and it must be specifically identified. For example, if the information embodies a new business idea, the information has to be realisable in practical terms and it has to be developed to a point where it acquires some commercial attractiveness. The information must be specifically identified by the owner or conveyor of the information for it to be considered as confidential.
- The release of the information will injure the owner of the information or benefit others. For example, when the information embodies a new business idea, the disclosure of information to a third party may result in the novel idea being adopted by the third party. In this case, the owner of the information will lose the opportunity to make use of the novel idea and thus incur losses of potential future benefit and the third party who made use of the information will benefit from that information. Then the information can be said to be confidential information.
The information and conversation are likely to be considered confidential and recording conversations without consent in these cases means you can be sued for a breach of confidence.
Who has the obligation to keep the conversation/information in confidence?
You may have an obligation to keep confidential information in a conversation in confidence if you have or are the following:
- A contract with the owner of the information which states that you are to keep certain information confidential
- A lawyer, and your client told you some confidential information in the conversation recorded
- A banker, and your customer told you some confidential information in the conversation recorded
- An employee, and your current employer told you or you found out some confidential information from your employer in the conversation recorded
- A business partner, and you and other business partners have the view of commercially exploiting that information
- Any other relationships where there is a duty imposed on parties to act on the basis of good faith and with good conscience, and such a duty in turn imposes an obligation of confidence
You will not be bound by the obligation if you are unaware and have no reason to be aware that the information given in the conversation is confidential. The burden lies on you to prove that you are unaware that the conversation is confidential and have no reason to be aware.
If you can successfully show your lack of awareness and the lack of awareness is justified, then you cannot be sued for breach of confidence for recording the conversation without consent, since you are not bound by the obligation.
Was there any unauthorized use of information?
You may be liable for the breach of confidence, if you recorded the conversation with confidential information and used the confidential information or disclosed the information to a third party without any authorization by the owner of the information.
However, the mere fact that you have disclosed or used the confidential information is insufficient for a breach of confidence to be found. The burden lies on the owner of the confidential information to show that the disclosure and usage of the confidential information would be detrimental to his interest.
Unauthorized disclosure is allowed if it is in the public interest to do so, or there is justifiable excuse or reason for doing so. For example, it may be considered justified if the conversation with confidential information was recorded and the information was disclosed to prevent the cover-up of a wrongdoing. The burden lies on you to show that there is indeed a justified reason behind disclosing confidential information.
Remedies for breach of confidence
If all elements have been successfully established and it was found that there has been a breach of confidence, the following remedies may be awarded against you
- An injunction to stop you from using or disclosing the confidential information;
- Damages for causing injury to the owner of the confidential information; or
- An account of profits if you benefited from recording the conversation with the confidential information and disclosing or using the confidential information;
- An order for delivery up and/or disposal of materials which contain the confidential information.
For further information and assistance, you may wish to get in touch with an experienced lawyer.
