INTRODUCTION
With the widespread use of smartphones, recording conversations has become increasingly easy. A person may record a telephone conversation, a meeting, a face-to-face discussion or even a voice note with the intention of preserving what was said.
This often happens when a conversation involves a threat, an admission, harassment, a business dispute or conduct that may later become the subject of legal proceedings.
However, the ease with which a conversation can be recorded does not necessarily mean that every recording is legally permissible or that every recording will automatically be accepted as evidence in court.
This raises important questions. Can a person legally record a conversation without informing the other party? Does it make a difference if the person making the recording is also participating in the conversation? Can the recording be used in court? And can a recording that was lawfully made be published on social media?
Under Nigerian law, the answers depend on several factors, including the circumstances in which the recording was made, the nature of the conversation, the privacy expectations of the persons involved, the purpose for which the recording was made and whether the recording satisfies the requirements for admissibility in evidence.
THE RIGHT TO PRIVACY UNDER THE NIGERIAN CONSTITUTION
The starting point is Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which protects the privacy of citizens, including the privacy of their homes, correspondence, telephone conversations and telegraphic communications.
This constitutional protection means that privacy is a legally recognised right. However, the existence of a right to privacy does not mean that every recording made without the knowledge of another person is automatically unlawful.
The circumstances surrounding the recording remain important.
There is also a distinction between two separate legal questions:
- Whether the recording was lawfully obtained; and
- Whether the recording is admissible in evidence.
These questions should not be confused. A recording may raise privacy concerns, while the question of whether it can be admitted in court will depend on the applicable rules of evidence and the circumstances in which it was obtained and presented.
RECORDING A CONVERSATION IN WHICH YOU ARE A PARTICIPANT
The situation is generally different where the person making the recording is themselves a participant in the conversation.
For example, a person who records a telephone conversation in which they are participating, or a meeting or discussion that they are attending, is in a different position from a person who secretly records a conversation between two other people.
This distinction may become particularly important where the recording is made to preserve evidence of threats, harassment, fraud, extortion, workplace misconduct or other unlawful conduct.
For example, a person who is directly involved in a conversation in which another person makes a threat may wish to preserve an accurate record of what was said for the purpose of protecting their legal interests.
However, participation in a conversation does not give a person an unlimited right to publish or distribute the recording. The recording and the subsequent use of the recording are separate issues.
THE GREATER RISK: RECORDING CONVERSATIONS YOU ARE NOT PART OF
The legal risk may be significantly greater where a person secretly records a conversation in which they are not a participant.
There is an important difference between recording a conversation in which you are directly involved and:
• Secretly placing a recording device in another person’s office;
• Intercepting communications between other people;
• Recording a private conversation in a home or other private setting; or
• Recording people in circumstances in which they have a reasonable expectation of privacy.
These circumstances may raise serious issues relating to privacy and the unauthorised interception of communications.
The Cybercrimes Act 2015 also contains provisions relating to the unauthorised interception of electronic communications. The circumstances of each case must therefore be carefully examined before a conclusion is reached on the legality of the recording.
THE RELEVANCE OF THE NIGERIA DATA PROTECTION ACT
The Nigeria Data Protection Act, 2023 may also become relevant depending on the circumstances.
A person’s voice may constitute personal data. Consequently, recording, storing, sharing or publishing a person’s voice may amount to the processing of personal data.
The purpose and manner of the processing are therefore important.
There is a significant difference between recording a conversation for personal protection or a genuine legal purpose and recording a conversation and subsequently publishing it online to embarrass, shame or expose another person.
The fact that a recording may have been lawfully made does not automatically mean that it can be freely uploaded to social media.
The publication or further sharing of the recording may raise separate legal issues relating to privacy and data protection.
CAN A SECRET RECORDING BE USED AS EVIDENCE IN COURT?
The fact that a recording is genuine does not automatically mean that it will be admitted in evidence.
Electronic recordings are subject to the requirements of the Evidence Act, 2011, particularly the provisions relating to computer-generated evidence.
Section 84 of the Evidence Act is particularly relevant where a party seeks to rely on electronic evidence. The party seeking to tender such evidence may be required to establish the relevant conditions relating to the operation and use of the device from which the evidence was produced.
The authenticity of the recording may also become an important issue.
The Court may be concerned with questions such as:
• Is the recording the original?
• Has it been edited?
• Can the voices be identified?
• Has the recording been tampered with?
• How was the recording made?
• What device was used?
• Was the device functioning properly?
A recording may appear compelling but still face evidential challenges if its authenticity, integrity and method of production cannot be properly established.
THE SUPREME COURT’S DECISION IN KUBOR v. DICKSON
In Kubor v. Dickson (2012) 4 NWLR (Pt. 1291) 1, the Supreme Court emphasised the importance of complying with the applicable requirements for the admissibility of computer-generated evidence.
The decision demonstrates that electronic evidence cannot simply be produced in court and automatically admitted merely because it appears relevant or genuine.
A party seeking to rely on electronic evidence must satisfy the applicable evidential requirements.
Consequently, where a person has a recording that may be required in legal proceedings, it is important to preserve the original recording and avoid editing or manipulating it. Details concerning when and how the recording was made, and the device used to make it, may also become relevant.
RECORDING A THREAT DURING A PERSONAL CONVERSATION
Consider a situation where a person is directly involved in a conversation and the other party makes a threat or engages in harassment.
Recording the conversation for personal protection or for the purpose of preserving possible evidence is generally a different situation from secretly recording a conversation between strangers.
However, the recording should still be preserved carefully and should not be edited or manipulated.
RECORDING WORKPLACE HARASSMENT
An employee who records a conversation in which they are directly participating may potentially seek to rely on the recording to support a complaint or legal claim.
However, the employee should preserve the complete recording and avoid presenting an edited clip that removes relevant context.
The circumstances surrounding the recording and the purpose for which it was made may be important in determining the legal issues arising from it.
RECORDING OTHER PEOPLE WITHOUT PARTICIPATING IN THE CONVERSATION
A person who secretly records a conversation between other people, particularly in a private environment, may face significantly greater legal risks.
The circumstances may raise questions relating to privacy, unauthorised interception and the manner in which the recording was obtained.
It is therefore dangerous to assume that the mere possession of a recording means that the person who made it had the legal right to make it.
WHAT ABOUT PUBLISHING THE RECORDING ON SOCIAL MEDIA?
This is where many people create additional legal problems for themselves.
Even where a recording was lawfully made, publishing it online to embarrass, shame or expose another person may create separate legal consequences.
The decision to record a conversation and the decision to publish the recording are two different legal questions.
A person should therefore exercise caution before sharing a recording publicly, particularly where the recording contains personal information or private communications.
PRACTICAL STEPS TO TAKE
If you genuinely believe that a recording may be necessary to protect your legal interests, consider the following:
• Where possible, ensure that you are a participant in the conversation.
• Preserve the original recording.
• Do not edit or manipulate the recording.
• Keep details of when and how it was made.
• Avoid publishing it on social media.
• Do not share it unnecessarily.
• Seek legal advice before relying on it in formal legal proceedings.
CONCLUSION
So, can you legally record someone’s conversation and use it against them?
The answer is: sometimes, yes—but it depends on the circumstances.
The legality and usefulness of a recording may depend on how it was obtained, whether the person making the recording was part of the conversation, where the recording took place, the purpose for which it was made, how it was subsequently used and whether it satisfies the requirements for admissibility in evidence.
A recording being genuine does not automatically make it admissible. Similarly, a recording that may be useful as evidence should not automatically be published online.
The safer approach is to record responsibly, preserve the original evidence, avoid unnecessary publication and obtain appropriate legal advice where the recording relates to an actual dispute or potential legal proceedings.
This article is intended for general legal education and does not constitute legal advice on any specific facts or dispute.