Illegal wiretapping – what does the criminal code say about it?

Wiretapping is a phenomenon that is not uncommon in times of ubiquitous digitization, readily available technologies and low legal awareness among the public. While it is a tool for some to “pursue the truth,” for others it represents a serious violation of an individual’s constitutional freedoms and rights. Is it legal to set up a wiretap? What are the consequences for its installation and use? Find the answers to these questions in the following study.

Table of contents

1. Illegal wiretapping: criminal code – legal basis and case law
2. Is wiretapping legal? Legal considerations and exceptions
3. What is the penalty for planting a wiretap? Criminal and civil liability
4. Is eavesdropping punishable in the workplace? Employer, employee and labor code
5. I found a wiretap at work – how to respond professionally and effectively?
6. Where to report an illegal wiretap? Legal paths and institutions
7. Can wiretap evidence be used in court? Case law practice
8. Compensation for wiretapping in work and private life – when is it due?
9. FAQ – frequently asked questions about illegal wiretapping

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Illegal wiretapping Criminal Code – legal basis and case law

The legal foundation for eavesdropping offenses is Article 267 of the Criminal Code. According to §3 of this provision, a person who, in order to obtain information to which he is not entitled, establishes or uses an eavesdropping, visual or other device or software is subject to a fine, restriction of freedom or imprisonment for up to 2 years.

Particularly relevant here is the concept of “lack of authority” and the purpose of the action. Even if the information acquired is true and relevant, but the manner in which it was acquired was illegal, the act may be considered a crime.

An important addition are court rulings that emphasize that:

• An eavesdropping device can also be a voice recorder, a cell phone, or even a spy app,
• confidentiality of the conversation and the lack of knowledge and consent of the person being recorded are crucial,
• recording a conversation in which one does not participate is treated as a crime.

Supreme Court ruling of December 30, 2020. (V KK 363/20) clearly confirmed that the intentional acquisition of information not intended for the perpetrator, by means of audio or video recording devices, without the knowledge of the participants, constitutes a criminal act.

Is wiretapping legal? Legal considerations and exceptions

According to the approach adopted in Poland, the legality of recording depends on whether the person recording the conversation participates in it. If so – the activity is not a crime.

However, if the recorder does not participate in the conversation, we are talking about so-called “external” wiretapping – illegal and potentially punishable. Civil law aspects are also particularly important here – even a legal recording can violate the personal rights of the person recorded, especially if the material is disclosed without his consent.

Eavesdropping is legal:

• When the recorder is a participant in the conversation,
• When the recording concerns the safety of the child or dependents,
• within the framework of special services activities, with the approval of the court and the prosecutor’s office.

Illegal eavesdropping is:

• Any recording of a third-party conversation without their knowledge,
• hidden devices in the home, car, workplace, without the users’ consent,
• Spy apps on the smartphones of partners, children or employees.

In this type of case, an experienced criminal lawyer will be helpful, assessing whether a crime has been committed and helping to prepare a notice to the prosecutor’s office.

What is the penalty for planting a wiretap? Criminal and civil liability

There is liability for planting a wiretap, depending on the circumstances:

Karna:

• fine,
• penalty of restriction of liberty,
• A prison sentence of up to two years.

In cases of gross invasion of privacy or further dissemination of content – the court may impose a harsher punishment, also taking into account other provisions, such as Article 190a § 1 of the Penal Code. (persistent harassment).

Civil:

• obligation to pay compensation and/or damages,
• obligation to apologize,
• Prohibition of further processing or publication of content,
• possible legal proceedings for violation of personal rights.

In the case of employees, of particular importance is the possibility of qualifying such action as mobbing under Article 94(3) of the Labor Code.

Is eavesdropping punishable in the workplace? Employer, employee and labor code

There is no provision in Polish law that explicitly allows an employer to wiretap employees. Monitoring in the workplace (e.g., cameras) is allowed, but only for specific purposes: to ensure security, protect property, control production or keep information confidential.

Audio recording – and thus eavesdropping at work – is generally not permitted unless the employee has given informed and voluntary consent. Moreover, even with his consent, the recordings can only be used for the purposes stipulated by law.

In the case of unlawful recording of conversations at work:

• The employer exposes himself to criminal liability (Article 267 of the Criminal Code),
• There is a risk of violating RODO and obligations under data protection laws,
• An employee can claim compensation for eavesdropping at work, claiming harassment, invasion of privacy and personal property.

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I found a wiretap at work – how to respond professionally and effectively?

In a situation where you have reasonable suspicion or evidence that you have been overheard at work:

1. Do not remove the device – its security is crucial as evidence.
2. Document the situation – take photos, write down dates and circumstances.
3. Report the matter to your supervisor (if not a suspect) or the HR department.
4. Notify the police or prosecutor’s office – a crime under Article 267 §3 of the Criminal Code.
5. Consult a lawyer – especially if the eavesdropping involved conversations of a confidential or personal nature.

In addition, the matter may be reported to the State Labor Inspectorate and the Office of Personal Data Protection.

If you suspect that your employer is using wiretapping, an attorney specializing in labor law can help.

Where to report an illegal wiretap? Legal paths and institutions

A report of a case of illegal wiretapping can be directed to:

• Prosecutors – crime under Article 267 §3 of the Criminal Code, prosecuted at the request of the victim,
• Police – preferably to the cell dealing with crimes against personal freedom,
• State Labor Inspectorate – if the case concerns the workplace,
• Office of Personal Data Protection – in a personal data breach,
• Civil Court – in order to obtain compensation or damages.

It is necessary to prepare evidence, ie:

• precise description of the event,
• Photo or technical documentation of the device,
• data of witnesses or suspects,
• Information about the psychological, professional or property consequences.

Can wiretap evidence be used in court? Case law practice

In the Polish legal system, there is no so-called “fruit of the poisoned tree” doctrine, so evidence obtained illegally can be admitted by a civil court. However, this does not mean automatic legalization of such action.

In criminal cases, the court has more leeway and can reject evidence obtained in violation of the law, especially when it was obtained in violation of constitutional privacy principles.

In divorce and family cases, courts often consider recordings to be relevant, especially when they document violence, infidelity or abuse. However, it is important to remember that the use of such material may result in separate criminal proceedings against the person recording.

Compensation for wiretapping in work and private life – when is it due?

A person who has been illegally eavesdropped on may pursue civil claims, regardless of possible criminal proceedings. In particular, claims are possible:

• for reparations for harm and invasion of privacy,
• For compensation for losses incurred (e.g., professional, reputational),
• for an injunction against further processing or publication of the recording,
• To order an apology and public correction.

Both individuals and employees can pursue these claims by invoking the Civil Code and labor law.

FAQ – frequently asked questions about illegal wiretapping

Is wiretapping legal?

Only if you are a participant in the conversation. Otherwise, it’s an illegal activity.

Is eavesdropping punishable?

Yes, a penalty of up to 2 years imprisonment is provided.

Where to report an illegal wiretap?

To the prosecutor’s office, police, PIP or UODO.

Where to report a wiretap at work?

First to the supervisor or HR, then to the prosecutor’s office or PIP.

What is the penalty for planting a wiretap?

Fine, restriction of liberty or up to 2 years in prison, as well as compensation.