In France, is it illicit to use a recorded content as a proof, when the person was recorded without knowing it?

Question

I remember hearing more than once from unofficial sources (and from people whose main domain isn't law) that you can't use a recording as a proof at the court, if said recording wasn't taken with the person's consent (or if it isn't a public area with some clear sign of recording devices, e.g. train stations for example).

For example: if I were to hide my phone in my back in recording mode, to record someone during a conversation, while they are saying something I could sue them for.

Now I know there are some cases of exception (e.g. if people are suspecting someone might be taking part to some terrorism acts for example, but that's the extreme case).

In what condition can a recording be considered as illegal, or otherwise, when is it legal to use a recorded material as a proof, even without consent of recording?

Answer 1

Yes, this can land you in jail, no matter what

In France, per article 226-1 du code pénal recording without consent may be punished by one year in jail and 45000€ fine. Any recording without authorization of all parties involved (including the owners or administrators of buildings recorded either outside or inside due to copyright of the architectural image) can also land you in legal trouble either criminally or in civil court. The consent is implied if the parties involved knew about it and had means to deny authorization but didn't, but mind that any recording, secret or not, can be considered non consented, which probably discourage anyone from recording anything in France.

However you can still show these images obtained illegally in a court and the judge has the right to declare such recording justified (no statute about this, it is totally up to the judge) and thus allow you to use it as evidence both in civil or penal matters. It does not, however, protects you from being sued latter for the exposure of the recorded party, but the acceptance as evidence by a judge may serve as defense.

This means that many forms of recording in France, including tourists taking pictures of the Eiffel tower, obviously without authorization of the administrators of the tower or any potential passer-by, is in fact committing a crime, although obviously the law in simply not enforced for these cases. However, if a filmmaker records the Eiffel Tower and makes millions in box office, the tower administration will probably go to the trouble of collecting some money threatening to press charges if not paid.