Covert Recordings and the Law of Evidence

Content:

Civil Law: Neighbourhood Nuisances and Recordings Made at Home
Employment Law: Covert Recordings at the Heart of Employment Litigation
Criminal Law: A Distinct and Historically More Permissive Regime
A Case-by-Case Assessment

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Filming a neighbour whose nuisance has made life unbearable, secretly recording an employer or employee making unacceptable remarks, or preserving an audio record of a meeting during which misconduct occurred: these may seem like natural responses to a situation one is forced to endure. Yet, until very recently, French courts would almost automatically exclude such evidence. In a Plenary Assembly judgment of 22 December 2023 - the most solemn formation of the French Court of Cassation- the French evidentiary landscape was profoundly reshaped. Recordings made without the knowledge of the person recorded are no longer inadmissible as a matter of principle: they may now be produced in court, subject to a proportionality review, the proper application of which may determine the outcome of the dispute.

Since a Plenary Assembly judgment of 7 January 2011, the Court of Cassation had upheld an almost absolute principle of fairness in the gathering of evidence: any evidence obtained without a person’s knowledge, through deception or subterfuge, was inadmissible, without the judge having to assess the circumstances in which it had been obtained. This principle, grounded in the dignity and credibility of the judicial process, could in practice deprive certain litigants of any means of establishing their rights - a situation that the European Court of Human Rights has considered incompatible with the principle of equality of arms guaranteed by Article 6 §1 of the Convention. Against this background, the Plenary Assembly effected a major reversal of precedent: the unlawful or unfair manner in which evidence was obtained no longer automatically requires its exclusion from the proceedings. Where requested to do so, the judge must now balance the right to adduce evidence against the competing rights and interests at stake - first and foremost, the right to respect for private life. Such evidence may be admitted only where it is essential to the exercise of the right relied upon and where the interference with competing rights is strictly proportionate to the legitimate aim pursued.

Civil Law: Neighbourhood Nuisances and Recordings Made at Home

An action based on abnormally excessive neighbourhood disturbances, brought under Article 1253 of the French Civil Code, requires the claimant to establish a disturbance exceeding the normal inconveniences inherent in communal living - assessed having regard to the intensity, frequency, duration and recurrence of the nuisance - as well as a causal link with the loss or damage suffered. By their very nature, such disturbances are often fleeting, intermittent and difficult to substantiate through conventional means such as a bailiff’s report, witness statements or an expert report.

In this context, an audio or video recording made at the victim’s own home may have irreplaceable evidentiary value. Since the judgment of 22 December 2023, its production in court is no longer systematically excluded: the judge must assess its admissibility in light of the circumstances in which it was made, whether it was essential to establishing the truth, and whether the interference with competing rights was proportionate.

The opposing party nevertheless remains entitled to challenge its admissibility. Accordingly, an evidentiary strategy should be developed with the utmost care. Ideally, a report prepared by a French judicial commissioner (commissaire de justice) while the nuisance is occurring should be used to supplement and reinforce privately made recordings.

Employment Law: Covert Recordings at the Heart of Employment Litigation

It was precisely in the field of employment law that the judgment of 22 December 2023 was delivered, and its practical impact is particularly significant. In this specific case, an employer had produced transcripts of covert recordings of interviews with an employee in order to establish serious misconduct justifying dismissal. The Orléans Court of Appeal excluded the recordings solely on the ground that they had been obtained unfairly and, as a result, held that the dismissal was without real and serious cause.

The Court of Cassation quashed that decision, criticizing the lower court for failing to conduct the proportionality review required by the circumstances.

The reversal likewise benefits employees. An employee who has secretly recorded a supervisor making statements amounting to workplace harassment or discriminatory conduct may now have a solid legal basis for seeking admission of such a recording before the employment tribunal (conseil de prud’hommes), provided that the employee can establish that the recording was the only means available to prove the conduct complained of and that the interference with the speaker’s privacy was proportionate to the seriousness of the conduct in question.

Criminal Law: A Distinct and Historically More Permissive Regime

It should be emphasised that the 22 December 2023 reversal applies only to civil proceedings. In criminal matters, the Court of Cassation has long held that no statutory provision permits a criminal court to exclude evidence produced by a private individual solely because it was obtained unlawfully or unfairly. The principle of fairness applies, by contrast, to public authorities and law-enforcement officials.

This difference between the two procedural regimes had, moreover, given rise to procedural strategies whereby parties would first bring proceedings before the criminal courts in order to have unlawfully or unfairly obtained evidence admitted, and then seek to rely on that evidence in related civil proceedings.

By bringing civil evidentiary rules closer to the proportionality-based approach that has long prevailed in criminal proceedings, the Plenary Assembly’s judgment helps eliminate this dual standard and the procedural distortions it could create.

A Case-by-Case Assessment

The admissibility of covert evidence can never be taken for granted: it must be established, argued and defended as part of a carefully considered litigation strategy.

Our firm assists clients - including individuals, employees, employers, co-owners, and investors - in assessing the evidentiary value of the material available to them, structuring an evidentiary case that meets the requirements of the proportionality review now applicable, and defending or challenging the admissibility of evidence before the civil courts, employment tribunals and criminal courts. Because evidence obtained improperly can ultimately be turned against the person who produced it, and because evidence that is not properly challenged can result in a judgment that the merits of the case did not warrant, mastery of the law of evidence is not a secondary procedural issue. It is often what makes the difference between winning and losing.

 

Author: Soraya Racette