Published 24 August 2018, The Daily Tribune

In the recent past, CCTV surveillance cameras have been an effective tool in solving crimes.  We see them in public places, streets, hotels, restaurants and buildings.  Due to the advances in technology, CCTV cameras are now equipped with audio-recording capability.

As a result, legal issues in technology are now becoming more common.  For example, can the employer install CCTV with audio inside offices which may capture the private conversation of employees?  Will it violate the employees’ right to privacy?  Can it be considered as eavesdropping which is a crime under the Anti-Wiretapping Law?

When we speak of the legality of installing CCTV cameras, the case of Hing v. Choachuy (G.R. No. 179736, June 26, 2013) comes to mind.  In the said case, the owners of a business enterprise installed CCTV cameras facing their neighbors’ property in order to monitor the on-going construction therein which might destroy the wall of their building.  The neighbors invoked their right to privacy which enjoins persons from prying into the private lives of others.  In upholding the said right, the Supreme Court said that cameras should not be used to pry into the privacy of another’s residence or business office as it would be no different from eavesdropping, which is a crime under Republic Act No. 4200 or the Anti-Wiretapping Law.

However, the Supreme Court qualified the said pronouncement by declaring that the reasonableness of a person’s expectation of privacy must be determined on a case-to-case basis.  It can easily be discerned that the Hing ruling covers the expectation of privacy among neighbors.  What then is the expectation of privacy between employers and employees?

In Pollo v. Constantino-David (G.R. No. 181881, October 18, 2011), the Supreme Court had the occasion to answer the said issue and ruled that employees in workplace have less or no expectation of privacy.  Citing American jurisprudence, the Court said that the employees’ expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. In many cases, offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits.  Hence, the workplace cannot be considered a private place, home or man’s castle which should be free from unwarranted exploitation and intrusion.  The Court concluded that in a workplace, there is a legitimate intrusion of privacy.

The CCTV with audio will necessarily record the private conversation of the employees.  Is it considered eavesdropping which is a crime under the Anti-Wiretapping Law?

It is not.  A closer examination of the Anti-Wiretapping law would reveal that what the law criminalizes is the act of tapping any wire or cable or by using any other device or arrangement, secretly overhearing, intercepting or recording 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 (Section 1, Republic Act No. 4200).

In Gaanan v. Intermediate Appellate Court (G.R. No. L-69809, 16 October 1986), the Supreme Court explained that the law refers to a “tap” of a wire or cable or the use of a device or arrangement for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words.  It ruled that an extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as “tapping” the wire or cable of a telephone line.  Similarly, the installation of a CCTV camera with audio cannot be considered tapping a wire or cable.  The Court also said that the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature.

As can be gleaned from the foregoing pronouncements, the installment of a CCTV camera with audio recording capability inside the offices will arguably not violate the right to privacy of employees and the Anti-Wiretapping Law.  It is believed that it will discourage employees from engaging in gossip during office hours and optimize efficiency at work.  For good measure and goodwill, however, it is suggested that a notice be given to the employees that such device will be installed.

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