Can You Record Phone Calls and Conversations in Denmark?
Denmark is a single-consent state, which means you’re allowed to record conversations and phone calls that you take part in without seeking the consent of other participants.
As long as you’re an active participant, you’re free to record conversations. However, it is illegal to spread or in any way disseminate private conversations.
If you’re not an active participant in a conversation, you only need to obtain consent from one of the participants before recording.
According to Section § 263 (3) of the Denmark Penal Code, it is unlawful, with the aid of equipment, to secretly listen or record statements made in private, phone conversations or other conversations between others or negotiations in a closed meeting in which you’re not taking part or to which you have unlawfully obtained access.
It is against the law to photograph a person who is NOT in an open place open to the public or use a telescope or other equipment to watch such a person. Section § 264a.
In short, you cannot photograph, video, or surveil someone who is in an area where there is a reasonable expectation of privacy. Such areas include homes, changing rooms, locker rooms, hotel rooms, etc.
Also illegal is obtaining or exploiting information brought to light by a violation of Section § 264a, even without directly participating in the violation. Section § 264c.
According to Section § 264d of the penal code, it is illegal to spread or forward information or pictures concerning another person’s private life or pictures of a person depicting circumstances that ought to be withheld from the public.
It is illegal to record obscene photographs or films of a person under the age of 18 years with the intention to sell or disseminate (spread) the material. Section § 230.
It is also illegal to disseminate such obscene photographs or films of persons under 18 years. Section § 235.
Denmark follows the European Union’s General Data Protection Regulations (GDPR). The GDPR was established to control the processing of data (including calls) owned by EU citizens by companies that have access to such data regardless of whether or not the companies are established within the EU.
In Denmark, the GDPR is known as the Denmark Data Protection Regulation.
According to the Danish Data Protection Authority, companies are required to carefully consider whether it is necessary to obtain the consent of the participants before recording a telephone conversation.
If a data controller assesses that it is a must to record a telephone conversation for documentation purposes since the content of the telephone conversations cannot be documented in any other way without significant practical difficulties, including by preparing telephone notes or through subsequent correspondence with the data subject, then it is the Data Inspectorate’s opinion that the conversation can be recorded without the consent of the data subject.
However, if the data controller considers it necessary to obtain consent, the consent must meet the conditions outlined in the Data Protection Regulation.
Therefore, consent must be sought actively and unambiguously. So silence or inactivity is not adequate to construct an unambiguous action or statement.
For example, in the case of a phone call, consent can be obtained through an action such as the press of a button.
When recording conversations for education purposes, companies are required to obtain consent from the data subject. Exceptions apply in special circumstances, such as in cases of emergencies or rescue services.
Before recording work conversations, you need to consider whether your coworkers’ and employer’s interests outweigh your interests.
In a court case between an employer and employee who was a customer advisor, it was discovered that the customer advisor had recorded a conversation between him and a manager. The employer dismissed the customer advisor, effective from the date of the interview, on grounds of the recording.
The district court and high court ruled in favour of the employer on the grounds that the customer advisor’s recording constituted material breach of the duty of loyalty in the employment relationship making the dismissal justified.
After an appeal, the supreme court ruled in favour of the customer advisor, citing that the actual recording did not constitute a breach of the employment relationship.
The court stated that whether an employee’s secret recording of a conversation with his/her employer constitutes a breach of the terms of employment is based on “a specific assessment of the interests of the employee vis-à-vis the interests of the employer and other parties concerned.”
The supreme court stated that emphasis must be placed on:
- The purpose and background of the recording, e.g., the employee has a chance to secure evidence that the employer was violating the employee’s rights.
- What type of information the employee intended to record, whether the information is purely about private matters or information that “should be confidential for the sake of the company or others”.
In summary, the supreme court found that the employee’s audio recording was justified considering the background, contents and subsequent use of the recording by the employee. In addition, the interests of the manager and other employees did not outweigh this interest.
So if you record conversations in the workplace, it may be within your right to capture violations of your rights or record private conversations that do not entail confidential information about the company or others.
- Violating Section § 263 (3) is punishable by a fine or imprisonment for any term not exceeding six months.
- Violating Section § 264a, § 264c and § 264d is punishable by a fine or imprisonment for any term not exceeding six months.
- Violating Section § 230 and Section § 235 is punishable by a fine or imprisonment for any term not exceeding two years or in particularly aggravating circumstances, imprisonment for any term not exceeding six years.