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18 January 2018

What I always wanted to ask a lawyer… "recording" (Austrian law perspective)

Bamboozled again! The good old handshake agreements of the old days apparently died. Next time I'll wear a wire and record everything to bust these people. But is this legal? Maybe I should ask my lawyer first…

First you need to distinguish between the questions "Is recording conversations as such illegal?" and "Are you permitted to subsequently use such recordings?" 
In a nutshell, these issues generally require a balancing of interests, namely those of the recorded person and the recording person. It is a very delicate discussion, since the private sphere of the persons involved is highly affected. In some cases the recording of conversations is prohibited explicitly by law. Nonetheless, many legal questions are still unresolved in this field. 

So, do I risk criminal prosecution if I record conversations?This depends on the situation. If you were a participant in the conversation, secretly recording it is not a crime. But recording the private conversations of third parties is a crime. 
In both cases, the subsequent disclosure or circulation of the audio recording without the consent of the recorded person is also a crime. 

OK, so as long as I'm a party to the conversation, I am permitted to record it, right?
From the criminal law perspective, yes. However, don't forget the civil law perspective! There is a high risk that the recorded person will have civil law claims, like damage claims or removal claims, if he / she did not agree with the recording. 
So can I use recordings at least subsequently as evidence in proceedings?
There is no general rule in Austrian procedural law prohibiting the use of recordings as evidence, but that does not mean that any recording can be used as evidence without limitation. The admissibility requirements and the actual legal boundaries of submitting recordings as evidence are still unclear in many respects. 
Nonetheless, courts generally tend to rule that recordings can be used as evidence for defence against unjustified claims. Therefore, there are cases where the recording of conversations has advantages covered by law. But this must be assessed carefully beforehand.

Austrian criminal law provides clear rules regarding the legality of recording of conversations. From the civil and procedural law perspective, however, the issue is murkier. 

Ask your lawyer beforehand!

Further reading
What I always wanted to ask a lawyer..."recording" (Austrian law perspective)
Comparative Internal Investigations Primer in CEE

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authors: Klara Kiehl and Michael Lindtner