Can I record a telephone discussion, without informing the person I’m speaking to?

The relevant Act that applies in this instance is the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA).

Section 4 of RICA states: “Any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by any such person for purposes of committing an offence.” (My emphasis).

‘Communication’ is defined to include direct and indirect communication. “Direct communication”, is defined to include an oral communication between two or more persons which occurs in the immediate presence of all the persons participating in that communication.

RICA provides that no person may intentionally intercept or attempt to intercept, nor may they authorise or procure any other person to intercept or attempt to intercept, any communication in the course of its occurrence or transmission.

What this means is that recording a conversation which I am having with you, without you knowing that I am recording it, does not appear to be unlawful under RICA, but I can’t record an eavesdropped conversation in which I am not participating.

Our constitution gives you a right to privacy. Would this right prevent the recording of a conversation between two parties to a communication? So far there have been no reported judgments on the implementation of RICA.