Covert Voice Recording in Matrimonial Disputes Does Not Infringe Privacy?

Vibhor Garg v. Neha¹ is an interesting case for those who are privacy conscious for the reason that the Supreme Court held that Section 122² of the repealed Evidence Act, 1872 (IEA) which deals with communication privilege between husband and wife does not infringe on privacy when either of the spouses covertly records the voice of the other. The issue before the Supreme Court in this case was — can a conversation recorded by one party to a matrimonial dispute without the knowledge or consent of the opposite party be admitted as evidence in a matrimonial proceeding between them?

While resolving this issue, the Court performed a twofold analysis: (i) touching upon the scope of Section 122³ of the IEA that grants privilege between spousal communication along with its exceptions; and (ii) touching upon the aspect of infringement of privacy of party whose consent was not obtained for recording the conversation. This article is focused on discussing only the legality of the latter in light of the yet to come to force Digital Personal Data Protection Act, 2023 (DPDPA)⁴.

Privacy not an ingredient in Section 122 of the IEA

The Court discussed the relationship between Section 122⁵ of the IEA and right of privacy in the context of covert recording of conversation by one spouse in matrimonial disputes.⁶ Relying on K.S. Puttaswamy (Privacy-9J.) v. Union of India⁷, the argument of the respondent was that covertly recording voice undermines privacy recognised under Article 21⁸ of the Indian Constitution and so such recordings ought not to have been accepted by Family Court in their case. Though the Court was of the opinion that Article 21 did recognise the enforceability of right of privacy both horizontally (against individuals) and vertically (against State and non-State actors),⁹ it held that in this case the horizontal applicability is not an aspect to be considered when interpreting this section. The Court held that:

12. … Section 122¹⁰ of the aforesaid Act does not recognise such a right at all. On the other hand, the said section carves out an exception to right to privacy between spouses and therefore cannot be applied horizontally at all.¹¹

This finding of the Court may be surprising to many but given that there is no statutory framework that recognises the boundaries of privacy and data protections laws at present, the stand taken by the Court seems to fit further the intent of the Section 122¹² of the IEA. However, will it continue to remain the same once the DPDPA¹³ comes to force is to be analysed and understood.

The changes DPDPA will bring

Once the DPDPA¹⁴ comes to force, the domain of informational privacy will gain statutory recognition and data relating to people can no longer be used without complying with the law. This substantive law would allow for both horizontal and vertical enforcement of privacy rights, meaning the rights enumerated by the law can be enforced against individuals or against State and non-State actors if there is any violation. In terms of enforcing of rights, the law does not differentiate between the three.

It goes without saying that the DPDPA¹⁵ will acquire the status of a special law in the domain of data protecting personal data. When any other law came in conflict with the DPDPA in which enforcement of privacy and allied rights will be the core issue, the generalia specialibus non derogant rule of interpretation may govern such conflicts allowing the DPDPA to prevail over the conflicting law.¹⁶

Implication on covert recordings

Turning to the act of recording voice, voice data does amount to personal data under the DPDPA when Sections 2(h)¹⁷ and (t) are read together. This means recording the voice by any party will amount to processing personal data.

However, the DPDPA¹⁸ gives an exception to the applicability when the processing of personal data in Section 3(c)(i)¹⁹ when processing is for personal use or domestic purpose. Similar exception exists in the General Data Protection Regulation²⁰ in Article 2(2)(c) called as household exemption.

The European Court of Justice under the older data protection regime, the Data Protection Directive, decided the applicability of household exemption in a landmark case — Criminal Proceedings Against Lindqvist²¹. In this case a nun published names and some details of her colleagues (of a church) on a website. When this act was challenged as a violation of privacy by one of the colleagues, Mrs Lindqvist pleaded the household exemption. However, the Court opined that floating a website and making the personal data available goes beyond the personal sphere as anyone across the world can access the website and falls outside the scope of the household exemption.

In a more recent Austrian case²² that falls under General Data Protection Regulation (GDPR), a data subject admitted to another friend of hers over a WhatsApp phone call that she had committed misconduct against her ex-partner and that she had an abortion. She admitted to it being unaware that her friend was recording the call. Later the friend shared this call record with a few of data subject’s friends and ex-partner triggering the data subject to lodge a GDPR complaint against such act of sharing personal data. The Austrian Data Protection Authority was of the view that this act fell under the household exemption of GDPR as it was shared within the network of close friends and there was no commercial or professional motive behind it.²³

The takeaway for the applicability for household exemption or domestic purpose exception is that the processing activity should be within the private network of restricted individuals and must not be for fulfilling any professional requirement or financial gain. Once it goes beyond the private network it falls outside the scope of this exception and attracts the law in its full vigour.

Apply this analogy to the issue at hand about covert voice/video recordings, as long as the recording is kept private for their exclusive use by either of the spouse or share with their close family, it remains within the boundaries of personal use or domestic exception. But when the video is used for legal purposes, especially in a matrimonial dispute where the spouses are adversaries, it falls outside the purview of the exemption and the person recording the voice steps into the shoes of a data fiduciary. The DPDPA²⁴ applies to data fiduciaries and places compliance burden on them when processing personal data.

The DPDPA²⁵ requires data fiduciaries to give a privacy notice of a processing activity under Section 5²⁶ before any personal data processing is done. There are requirements of what the notice should contain for it to be treated as adequate under the provision. Sans this compliance, the processing personal data will be treated as unlawful.

Implication on future

Today the Supreme Court of India could reach a decision that privacy was not an ingredient in Section 122²⁷ of the IEA was possible only because the DPDPA²⁸ has not yet comes to force. However, the situation has to be viewed differently once the law is brought to force as covertly collecting evidences will run in conflict with the DPDPA, especially if the issue is private in nature as “horizontal applicability” will gain statutory force.

This issue of privacy rights under the DPDPA²⁹ coming in conflict with privilege granted by evidence law will invariably crop up before numerous Family Courts as conversations recorded surreptitiously are frequently used by parties to bolster their cases. Deciding this issue will pose a significant challenge to Family Courts on one hand, as they will lack the necessary jurisdiction to decide on this subject-matter, and on the other overlooking or ignoring this issue would militate against the very purpose of the DPDPA.