On Video and Audio Recording using your Mobile Phone

With advancements in mobile technology, the average person can now

record a documentary, or even an explosive exposé, merely using one’s
mobile phone, with crystal clear picture and sound, that may even impress
professionals.

However, you must always be careful with who and what you record with
your phone. Chances are, if you recorded a conversation with a person,
and that conversation was intended to be between you and that person
only (or between the two persons to the conversation only), and without his
or her (or both parties’) express consent, you may be liable for wiretapping.

In the Philippines, wiretapping is a crime punished under Republic Act No.

4200, also known as “The Anti-Wiretapping Act”.

Sections 1 and 4 of the Anti-Wiretapping Act, states that it shall be unlawful

for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a
dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder,
or however otherwise described. These sections also provide that it shall
also be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceding sentence, to knowingly possess any tape
record, wire record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured either before or
after the effective date of this Act in the manner prohibited by this law; or to
replay the same for any other person or persons; or to communicate the
contents thereof, either verbally or in writing, or to furnish transcriptions
thereof, whether complete or partial, to any other person. 

The Supreme Court, in the case of Salcedo-Ortanez vs. Court of

Appeals (G.R. No. 110662, 04 August 1994), held that unless there is a
clear showing that both parties to the conversation allowed its recording,
the recording is illegal and may subject the person who made the recording
to the penalties provided under Republic Act No. 4200.

Where the conversation was recorded using a mobile phone, whether the
recording is video or only audio, the best evidence that both parties to the
conversation allowed its recording should be found in the recorded
conversation itself. This is the import of the decision of the Supreme Court
in the case of Salcedo-Ortanez, where the party who is recording or is
presenting the recording, must establish a “clear showing” that both parties
to the conversation allowed its recording.

Further, in the case of Ramirez vs. Court of Appeals  (G.R. No. 93833,

28 September 1995), it also does not matter who made the unconsented
video or audio recording. The 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 intent of
Republic Act NO. 4200 is to penalize all persons unauthorized to make
such recording. The use of the qualifier “any” in the law establishes that.
Consequently, “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 R.A. 4200.

It also does not matter where the recording was done. Whether the
conversation was made in the confines of a private space such as a house
or private room, or in a public place, such as a park or restaurant, the audio
or video recording of a conversation, done without the consent of both
parties, is still illegal and punished under the Anti-Wiretapping Law.

This was the intent of the lawmakers, when R.A. 4200 was enacted.
Senator Tañada clarified that “it is the communication between one person
and another person — not between a speaker and a public (Congressional
Record, Vol. III, No. 33, p. 626, March 12, 1964). He also said that the law
is a complete ban on recorded conversations taken without the
authorization of all the parties.

Moreover, the Supreme Court, in the cases of Mamba vs. Garcia  (G.R.

No. 93833, 28 September 1995), and Office of the Court Administrator
vs. Floro (G.R. No. RTJ-99-1460, 31 March 2006), ruled that the recorded
conversation between a judge and other persons, done in the judge’s
chambers, is illegal, without the consent of all the parties. Note should be
made that the Supreme Court classified the judge’s chambers as a public
place.

Finally, it is settled in Philippine law and jurisprudence that due to the

inherent illegality of a video or audio recording, done without the consent of
both parties to the conversation, the recorded conversation cannot be used
in any proceeding, used by either party against the other, nor can be the
basis of any case, claim or right.

Thus, be careful who you record and what you record, on your mobile
phones. You may get into a lot of trouble, if you do so, without the consent
of everyone who is part of the recording