Supreme Court Determines Workplace Conversation Recorded Without Consent May Be Considered Valid Evidence

As in many countries, evidence presented before Chilean courts must be lawfully obtained and may not violate confidentiality regulations. However, in a decision that has surprised many, the Supreme Court of Chile has questioned the application of this principle in employment disputes.

Background

Amid a collective bargaining process, a meeting took place between an employer’s head of human resources and its employees who were no longer affiliated with the union. The employees secretly recorded statements made by human resources, including that employees are entitled to impeach the union’s board of directors and that employees advised wrongly by the union may withhold payment of union dues. The union then sought to rely on the recording to file an anti-union claim. Whether this piece of evidence was valid to pursue such claim was contested.

The Court’s Ruling

The Supreme Court ruled that the surreptitious voice recording is valid evidence because it did not violate the reasonable confidential expectation doctrine. Under the Supreme Court’s rationale, a workplace conversation is not prima facie confidential. On the contrary, the confidential nature of a workplace conversation is based on several factors: hostile or friendly context (the more hostile, the less confidential); number of attendees (the more attendees, the less confidential); whether the content of the topics discussed are employment related or personal; and whether the company informed the attendees of the secrecy of the meeting.

The Supreme Court’s decision that the right of confidentiality is limited and depends on various factors in employment matters contradicts criteria and case law in other cases, as well as criminal law principles and regulations, which provide that concealed recordings are not to be admitted as evidence unless these recordings are expressly authorized by the individuals being recorded.

Comment

The need to establish clear and functional principles that regulate a sensible relationship between technology and fundamental rights, while at the same time following common sense and reasonable expectations of privacy, is without a doubt challenging. The Supreme Court’s decision may be seen as failing to strike the right balance .

Written by Ignacio García and Fernando Villalobos of Porzio Rios Garcia and Roger James of Ogletree Deakins