Czech Republic: Telephone call recording used as evidence


In one of its recent decisions[1], the Constitutional Court of the Czech Republic had to address a question whether a recording of a monitored telephone call may be used as evidence in civil proceedings. The Constitutional Court arrived at the conclusion that under certain circumstances, such use of a telephone call recording is permissible.

In the case heard before the Constitutional Court, the monitored telephone call concerned a commercial offer made by a company selling promotional space on the internet via telephone. The company claimed that during the call, a binding contract was made, which the other party denied. The call was not a private call as it was held as a part of business activities of both parties and at the beginning of the call, the recipient was warned that the call would be monitored. The company unsuccessfully claimed payment of CZK 6,000 in proceedings held at a district court level. The amount claimed represented a price allegedly agreed during the telephone call for services offered by the plaintiff. The district court dismissed the claim. The court argued that the plaintiff failed to prove that a binding agreement had been made between the parties. The plaintiff produced evidence consisting in a recording of a telephone call which, according to the plaintiff, resulted in a binding contract between the parties. The district court disregarded the evidence as, according to the court, „monitoring“ of telephone calls did not include „archiving of recordings for future use“ and therefore, such evidence was not permissible. Referring to cases decided by higher courts in the past, the district court argued that the defendant’s consent with monitoring of the phone call only allowed for monitoring of the communication in real time, but not for recording the communication for later use. The court argued that consent with monitoring was not sufficient to replace consent with making audio recordings for later use. The district court also used the principles of protection of mailed messages and privacy or documents and records in order to support its conclusions.

The plaintiff did not agree with the court’s interpretation of the issue and filed a complaint with the Constitutional Court of the Czech Republic (as due to the value of the claim, no other means of appeal was available to the plaintiff). The plaintiff based its constitutional complaint on an argument that the judgment of the district court violated its right to judicial protection, which is guaranteed by the constitution. The Constitutional Court found the complaint grounded. The Constitutional Court did not share the view of the district court that the recording was illegal and therefore unsuitable to be used as evidence before the court. Even earlier court decisions, including all earlier decisions of the Constitutional Court, permitted recordings made with the consent of the party being recorded to be used as evidence. In this case, the recipient of the call was expressly warned that the call would be monitored. According to the Constitutional Court, the interpretation of the district court was too narrow, as monitoring does not only include monitoring of the call in real time, but also the use of the recording later in the future.

According to the Constitutional Court, arguments used by the district court citing the principles of protection of mailed messages and privacy or documents and records were also wrong. If the right to judicial protection and the right to protection of privacy, both guaranteed by the constitution, stand against each other, the Constitutional Court believes that the right to judicial protection shall have precedence. It is necessary to note that the call took place between two entrepreneurs and that the defendant new of the call being monitored. The Constitutional Court does therefore not perceive the use of a recording of a telephone call, during which a commercial offer could have been made and accepted, as evidence as an impermissible violation of privacy.

The Constitutional Court did not deal with the question whether, during the phone call, a contract was or was not made. This will be assessed by the district court, where the case now returns.

[1] nález Ústavního soudu sp. zn. II. ÚS 2299/17,