The use of devices to record conversations in the workplace raises legal and privacy issues, with implications for security and workplace relations.
The spread of technologies capable of recording conversations has forced companies to address a new and sensitive reality: how to manage and regulate the recording of workplace conversations, in compliance with legal requirements and while preserving internal trust.
Technological evolution and new challenges for companies
It’s a well-known fact: technology evolves at a pace that often outstrips both regulation and collective awareness. An increasingly common phenomenon is the use, by employees, of magnetic devices or smartphone apps that enable the recording of phone calls, meetings on platforms such as Teams or Zoom, or in-person conversations.
Alongside these tools, there are also real-time transcription software solutions and artificial intelligence systems (such as ChatGPT), capable of summarising large amounts of audio data.
The latest recording devices are small, discreet, and easily connected to smartphones — and, most importantly, accessible to everyone in terms of both availability and cost.
One of the most striking aspects is that this often happens without the knowledge of those involved. When such recordings are made in a workplace setting, the issue becomes highly complex. How can — and should — an employer deal with these situations?
Today, these topics represent a new frontier in the management of issues such as know-how, personal data protection, transparency, and corporate security.
Lawful and unlawful recordings under Italian law
Italian legislation on recordings is complex. Leaving aside, for the purposes of this discussion, all provisions regarding interceptions ordered by the Judicial Authority, it is worth examining the rules on the recording of conversations (telephone or in-person) made by private citizens who directly participate in the dialogue and make recordings without the knowledge of the other parties. On this point, case law—particularly that of the Court of Cassation—has developed a consolidated stance.
According to the prevailing and consistent position of criminal case law, an audio recording of an in-person conversation, carried out on one’s own initiative by one of the participants, does not fall within the legal concept of an “interception” in the technical sense. The reasoning is that anyone engaging in a conversation accepts, to some extent, the risk that it might be documented by means of a recording.
In light of this position, the lawfulness of the recording is therefore strictly linked to the recorder’s participation in the conversation.
However, such lawfulness has limits. These limits are determined by the spatial context and the use of the recordings.
As far as spatial context is concerned, a recording remains lawful if it is made inside the recorder’s own home, in a location pertaining to them (such as their workplace), or in a public place or one open to the public.
Conversely, a recording made inside the private home of the recorded party, or in another private location belonging to them, is considered unlawful, as it may constitute the criminal offence of unlawful interference with another person’s private life (Article 615-bis of the Italian Criminal Code).
Recordings and data processing under the GDPR
In this context, it should be noted that processing a recording of conversations constitutes the processing of personal data within the meaning of Article 4 of EU Regulation 2016/679 – the “GDPR”.
In such cases, if the purpose of the recording is to establish or defend a right in legal proceedings, the processing of personal data (and therefore the recording itself) can be carried out without the data subject’s consent and without prior information, provided the data are processed solely for those purposes and for only as long as strictly necessary. This principle, although expressed in relation to pre-GDPR law, is consistent with the legal bases for processing under the GDPR: for example, Article 6(1)(f), which recognises legitimate interest, includes legal defence.
Evidentiary value and disciplinary limits of recordings
In general, recordings of conversations (telephone or in-person) made in this way are admissible in civil proceedings. Their evidentiary value is, of course, subject to verification of authenticity, but the Court of Cassation has clarified that the audio recording of an in-person conversation made by an employee and concerning a discussion with the employer does not constitute a disciplinary offence and does not undermine the relationship of trust, as it is justified by the exercise of the right of defence.
Read the full version published on Agenda Digitale.