Poisonous fruit or legitimate weapon: Secret recordings as evidence in trial
The everyday life of a lawyer is not often like an American legal drama. But sometimes, it actually is.
An extremely unpleasant plaintiff demanded a high service fee from my client. My client insisted that she had entered into a settlement agreement, which the plaintiff had breached. He, however, claimed to know nothing about this agreement.
During his testimony, we let the man lie to the judge for an hour, portraying my client as a fraudster. Once he had worked himself into a rage, and I had him confirm once more that every word was true, I formally apologized for what he was now forcing me to do. And then I presented the transcript of the meeting, which my client had recorded with her mobile phone because she had long accused him of lying and gaslighting.
The matter ended quite quickly after a criminal complaint for fraud during the trial, and the opponent withdrew the lawsuit.
Can secret audio recordings be used as evidence?
Yes. In Austrian civil law, there is no prohibition on the use of evidence; there is no "fruit of the poisonous tree" rule as in the USA.
But are secret audio recordings even allowed in the first place?
The answer is generally a clear no. Under data protection law, recording, storing, and any other processing is not permitted.
Under criminal law, however, in our case, one is only penalized if the audio recording itself is made accessible to other persons (§ 120 para 2 StGB). Making a transcript accessible, on the other hand, is permitted.
The Exception: Proof Crisis (Beweisnotstand)
If a transcript has been made, in practice, one regularly wants to keep the audio recording. The opponent could claim that the transcription is a forgery, and they will often do so – as happened in the case above.
And this is where the difficult part begins.
Basically, everyone has the fundamental right to confidentiality of their personal data. The Data Protection Authority and the Supreme Court take the view that there must be a justifying proof crisis, and not just a general interest in good evidence, to retain the recording. This means: The client may keep the audio recording if she can prove that she absolutely needs it because her claim would otherwise be unenforceable, and if her subjective interests outweigh those of the violated privacy.
The Dilemma
When the Supreme Court or the Data Protection Authority reach a decision, the taking of evidence is long over, and at that point, it is very easy to be incredibly wise. In the middle of a proceeding, no one knows whether the opposing party is telling the truth or not, whom the judge believes, and whether an evidential necessity will exist. One only knows afterwards whether one acted correctly or incorrectly.
Can I advise a video recording? No. One is likely in breach of the law and could be penalized by the Data Protection Authority if the matter comes to light and the authority once again receives resources. The law and the courts leave us alone. One must weigh the risks of all possible courses of action for oneself and predict the future as best as possible.
And for the lawyer, this means: Have the client transcribe it (§ 120 para 2 StGB also applies to one's own lawyer!) and fly by the seat of one's pants in the trial. At least a little bit of thrill and lawyer-series moments are guaranteed.