Recording without a person’s consent Is Haram & Unlawful:
Is Your Conversation Being Recorded?
Alagi Yorro Jallow
Fatoumatta: As Gambians, we must and should not give over our ethical journalism and future of journalism to the control of others. It could be that information people are keen to release could be embarrassing and distressing. However, on the other hand, it could be that the data or personal information is infringing on people’s privacy. So we must always take editorial responsibility and consider whether people would want the information shared or published if released. However, Journalists and non-journalists should also respect that not every personal information wishes to be shared or posted in “the marketplace of ideas.”
A journalist is responsible for being open and transparent with people about how they intend to use their data. This includes details such as telephone numbers and email addresses. They must never pass these on to others without obtaining the owner’s consent. Recording of ‘private conversation’ without the other person’s knowledge or consent and permission is in breach of a person’s fundamental right to privacy.
Fatoumatta: A few years ago, I walked into a phone shop wanted another phone. The one I had felled, and the screen cracked. So I opted for a new one. I was sold on a phone that has picture quality. The guy who helped me transfer all my contacts and pictures from my five-year-old Nokia Lumia offered to help install apps and anti-virus. After serious questioning, I reluctantly allowed him to.
The following day, I realized my tray was full of all kinds of apps. I am not an app person. I was distraught. I started uninstalling the apps. Then, I came across a call recorder. He installed it for me as a popular app. What! It lent credence to the warning I have been receiving that many Gambians record each other’s conversations. What for? Why? I deleted the app. For me, I do not say anything in private that I cannot defend in public. If I have to talk about anyone with someone else in private, I make sure I can say it to their face. If I call someone a thief in private, be sure the person cannot confront me because they know I have the goods.
Gambians recording private conversations and sharing intimate, uncompromising images of people blackmailing them on social media got me thinking. If we are not hypocrites, we will agree that all said about Gambian politics of indecency is true. There is no way to parse it. Life is more complicated in the Gambia —no more free money. We do no longer read and do not demonstrate any intellectual curiosity. When tribal bigotry masquerades as patriotism, then know that we have a real problem in The Gambia. Perhaps it is time we finally stopped pretending that the Gambia will eventually “age out” of tribalism? It seems a lot of the people spewing hate are pretty young and educated folks. It is a Shame!
People are angry. The economy is terrible. There is endemic corruption. An ecosystem of patronage in government.Nepotism and tribalism. These are valid points. They are necessarily harmful but come from our people, particularly journalists and politicians, and are very damaging. I like that now the current Secretary-General has tightened the noose and blocked the leakage of confidential unclassified government documents on social media that leads us to the question; what is a reasonable expectation of privacy in the Gambia? With the telephone in everyone’s hand, do people know the responsibility that comes with the use of Smartphones?
Sometimes, one of my sisters and friend Yadicone went to a restaurant, took a picture of Boybairaay Malanding but refused to share it, based on a reasonable expectation of privacy. That is what is expected of a decent person.
The tyranny of the majority over the minority in politics is not allowing reason and progress into our humanity to triumph; our lawmakers are loafers. Instead of thinking ahead and making relevant laws to protect us, they are only concerned with money and emoluments. Unreasonable recordings of private conversations and sharing of intimate images can ruin families, cause deaths and suicides. Already, Ndeysaan, people prefer to record accident scenes instead of saving lives. We need to be careful when we put others in jeopardy. Recording without a person’s consent is haram and unethical in journalism:
Fatoumatta: First, it is unlawful for journalists or any media practioner to intercept, share, publish, or broadcast record phone conversations among other people. That principle also applies to in-person communications that enjoy a reasonable expectation of privacy (e.g., two people are whispering in an office with the door closed, and you are using a sound-amplifying device to pick up their conversation).
Now, what if you are a party to the conversation, either by phone or in-person? Then can you record it? For example, the federal wiretap law in America uses a one-party consent rule, which means that anyone party to a conversation can consent to its recording. Therefore, the recording person can consent, and they do not have to notify the other parties.
However, in addition to the federal wiretap law, every state has its own. Some States use a one-party consent rule, but others use an all-party consent rule, which means you must obtain the consent of all parties to the conversation before recording it. Furthermore, it is not always clear which law applies. As another media lawyer once said, if a person lives in Virginia but has a Washington DC cell number and is on vacation in California. She receives a call from a guy in Massachusetts and wants to record their conversation; which law applies? If there is a conflict, the most prudent thing to comply with is the most restrictive rule.
Finally, an intrusion is a civil claim that allows a person to recover damages for an offensive physical, electronic, or mechanical invasion of her seclusion. Put differently, if a person is in a place where she or she has a reasonable expectation of privacy and that privacy is violated offensively, they could sue the violator for intrusion (e.g., using a telephoto lens to photograph a woman sunbathing topless on a private patio that’s far from a public area and generally concealed).
Fatoumatta: Keep in mind that there is no reasonable expectation of privacy in public places, such as streets, parks, and large public gatherings. Journalists and media practitioners are free there to observe and record what they can see and hear. However, the issue is trickier when people are in quasi-public places, such as shops or restaurants. For example, would there be a reasonable expectation of privacy at a highly exclusive restaurant where you are seated in a private booth? That could go either way. In individual cases, whether there is a reasonable expectation of privacy will depend on multiple factors, including The degree of control the complaining person has over the space whether other people can freely or easily obtain access to it. Whether the complaining person has indicated that they expect privacy there.
Fatoumatta: Entering private property to gather news. Too many journalists seem to believe that the law or journalism Code of Ethics immunizes them from liability for general crimes they commit in newsgathering.
Fatoumatta: However, unfortunately, that is not the case—and trespass
is a classic example. Entering private property can result in a civil trespass
lawsuit or criminal charges. To trespass means you have entered the property without consent or refused to leave when asked. In most states, it is OK to approach a person’s home or business to ask the owner or occupant whether she will, for example, agree to be interviewed. However, once she refuses or asks you to leave, remaining there is a trespass. Nevertheless, of course, you also can enter private property simply because you want to gather news there.
To be continued.