Dear PAO,

I have a pending case against my employer before the National Labor Relations Commission. I would like to use as evidence a voice recording of our cellphone conversation. Can I legally do it?

Pablo

Dear Pablo,

Please be informed of Sections 1, 2, and 4 of Republic Act (RA) 4200 or the “Anti-Wiretapping Law,” which state that:

“Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: x x x

“Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute DISQUALIfiCATION FROM PUBLIC OFfiCE IF THE OFFENDER BE A PUBLIC OFfiCIAL at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. xxx

“Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.”

As provided under Section 1 of the aforementioned law, it is unlawful for any person to record a private communication without the consent of all parties to such conversation. In Section 3, the same law provides that such unlawful act is punishable by imprisonment for not less than six months or more than six years. Accordingly, Section 4 mandates that such unlawfully acquired recording is inadmissible in evidence in any judicial, quasi-judicial, legislative, or administrative hearing or investigation.

In the case of Ramirez vs Court of Appeals (GR 93833, Sept. 28, 1995), the Supreme Court quoted the deliberations when RA 4200 was passed where the late senator Lorenzo M. Tañada stated, “This is a complete ban on tape recorded conversations taken without the authorization of all the parties.” Even if the Anti-Wiretapping Law was passed way before cellphones came into being, and considering the fact that cellphones have the function to make recordings, there is a basis to believe that RA 4200 would still be applicable on such recorded conversations.

Hence, you may not validly use as evidence in the proceedings before the National Labor Relations Commission the voice record of your conversation with your employer, taken without his or her consent, as such act may open you to criminal liability under RA 4200. Further, the questioned recording may not be admissible in evidence as also provided by law.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.