Chile Recording Laws: One-Party Consent Rules and Penalties (2026)

Overview of Chile Recording Laws

Chile's recording and wiretapping laws are governed primarily by Articles 161-A and 161-B of the Codigo Penal, introduced by Ley 19.423 in November 1995. These provisions were enacted to protect the constitutional right to privacy guaranteed under Article 19, Nos. 4 and 5 of the Chilean Constitution.

On its face, the statute appears to require consent from the affected party before any private communication can be recorded. However, Chilean Supreme Court jurisprudence has narrowed the statute's scope considerably. The Court has held that Art. 161-A targets unauthorized third-party eavesdroppers, not participants in a conversation who choose to document it.

This judicial interpretation effectively makes Chile a one-party consent jurisdiction in practice. A person who is part of a conversation may record it without informing the other participants, provided there is no reasonable expectation of privacy that would override that right.

Understanding these laws is essential for anyone living in, visiting, or conducting business in Chile, as penalties for violations include imprisonment and significant fines.

The Core Statute: Art. 161-A of the Codigo Penal

Ley 19.423, published in the Diario Oficial on November 20, 1995, added Articles 161-A and 161-B to Chile's Penal Code. These articles create criminal offenses designed to protect the private lives of individuals and their families.

What Art. 161-A Prohibits

The first paragraph of Art. 161-A punishes anyone who, in private premises or places not freely accessible to the public, without authorization from the affected party and by any means:

• Captures, intercepts, records, or reproduces private conversations or communications
• Removes, photographs, photocopies, or reproduces private documents or instruments
• Captures, records, films, or photographs images or private acts that occur in private premises or places not freely accessible to the public

The key elements are: (1) the conduct occurs in a private or non-public location, (2) there is no authorization from the affected person, and (3) the material captured is of a private nature.

Dissemination of Recordings

The second paragraph of Art. 161-A imposes equal penalties on anyone who disseminates the conversations, communications, documents, images, or facts obtained through the means described in the first paragraph. This means that sharing an illegally obtained recording is itself a separate criminal offense carrying the same punishment as making the recording.

Aggravated Offense: Capture Plus Dissemination

The third paragraph creates an aggravated offense. When the same person both captures the private material and disseminates it, the penalty increases to reclusion menor in its maximum degree (3 years and 1 day to 5 years) and a fine of 100 to 500 UTM.

This means a person who secretly records a private conversation and then posts it online or shares it with the media faces significantly harsher punishment than someone who only records or only disseminates.

Exceptions to Art. 161-A

The fourth paragraph of Art. 161-A explicitly exempts persons who are authorized by law or by judicial order to perform the described actions. This exception covers:

• Law enforcement officers acting under a valid court order
• Intelligence agents operating under Ley 19.974
• Any person with a legitimate legal basis for the recording

One-Party Consent: The Supreme Court Interpretation

While Art. 161-A on its face appears to require consent of the "affected party" for any recording, Chilean courts have consistently interpreted the provision more narrowly. The dominant judicial view holds that Art. 161-A punishes only the conduct of a third-party intruder who intercepts or captures a communication to which they are not a party.

Under this interpretation, a participant in a conversation is not an "intruder" and therefore falls outside the scope of the criminal prohibition. This means that if you are part of a conversation, you may generally record it without committing the offense described in Art. 161-A.

The BCI Case (Rol 35.159-2017)

The most significant ruling on this issue is the Supreme Court's decision in the BCI case (Recurso de Unificacion de Jurisprudencia, Rol No. 35.159-2017), decided on April 12, 2018.

The case arose from a complaint of anti-union practices filed against Banco de Credito e Inversiones (BCI). Workers had secretly recorded a meeting with bank executives during collective bargaining negotiations at company facilities. The bank argued the recording was illegally obtained evidence that should be excluded.

The Court of Appeals of Santiago initially agreed with BCI and excluded the recording. The Supreme Court reversed that decision, holding that:

1. The exclusion of evidence requires a violation of constitutional guarantees, not merely a breach of a penal statute.
2. The workers were participants in the conversation they recorded, not third-party intruders.
3. The recording took place at a workplace meeting with multiple attendees during a labor conflict, where the speakers had no reasonable expectation of privacy.

The Reasonable Expectation of Privacy Test

The BCI ruling adopted a two-part test derived from the U.S. Supreme Court's Katz v. United States (1967) framework:

1. Subjective expectation: Did the person being recorded actually believe their communication was private?
2. Objective reasonableness: Would society recognize that belief as legitimate given the circumstances?

Under this standard, the admissibility of a participant's recording depends not on whether consent was obtained but on whether the recorded party had a reasonable expectation of confidentiality in the specific context. A statement made openly at a multi-person workplace meeting during a labor dispute carries little expectation of privacy, while a whispered personal conversation between two people in a closed room may carry a strong one.

Art. 161-B: Blackmail Using Recordings

Article 161-B of the Codigo Penal addresses what comparative law calls "blackmail" or "chantaje." It punishes anyone who attempts to obtain money, property, or any conduct not legally obligatory by threatening to use recordings or materials obtained through the methods described in Art. 161-A.

The penalty is reclusion menor in its maximum degree (3 years and 1 day to 5 years) and a fine of 100 to 500 UTM. If the conduct demanded of the victim itself constitutes a crime, the imprisonment penalty increases by one degree.

This provision ensures that even if a recording was lawfully made, using it as leverage to extort someone is a serious criminal offense.

Phone Recording vs. In-Person Recording

Telephone and Electronic Communications

Art. 161-A covers "conversaciones o comunicaciones de caracter privado" without distinguishing between phone calls, digital messages, or face-to-face conversations. The law applies equally to:

• Traditional telephone calls
• Mobile phone conversations
• Voice-over-IP (VoIP) calls
• Electronic messaging (email, chat)
• Video calls

For telephone intercepts by third parties, Art. 222 of the Codigo Procesal Penal provides the framework for law enforcement wiretapping, which requires judicial authorization.

The one-party consent principle from the BCI jurisprudence applies equally to phone recordings. If you are a party to the phone call, you may record it. A third party who taps the line without authorization commits a criminal offense.

In-Person Conversations

In-person conversations receive the same protection under Art. 161-A. The critical factor is whether the conversation takes place in a "private premises or place not freely accessible to the public." Conversations in truly public spaces, such as a park, a restaurant, or a public plaza, fall outside the scope of Art. 161-A because they do not occur in private or restricted-access locations.

However, even in semi-public places, the reasonable expectation of privacy test applies. A whispered conversation at a restaurant table may still carry a privacy expectation, while a loud argument in the same restaurant likely would not.

Law Enforcement Wiretapping in Chile

Art. 222 of the Code of Criminal Procedure

Article 222 of Chile's Codigo Procesal Penal governs lawful interception of communications by the state during criminal investigations. Key requirements include:

• Judicial authorization: Only a guarantee judge (juez de garantia) may order the interception, and only at the request of the Public Ministry (Ministerio Publico).
• Threshold: There must be well-founded suspicions, based on specific facts, that a person has committed or is preparing to commit a crime punishable as a felony (pena de crimen).
• Scope: The order may only target the accused or persons with well-founded connections to the communication.
• Duration: Interception cannot exceed 60 days, though the judge may grant extensions of equal length.
• Attorney-client privilege: Communications between the accused and their attorney cannot be intercepted unless the judge finds, based on specific facts, that the attorney may have criminal responsibility.
• Specificity: The order must identify the affected individual, the communication means to be intercepted, the responsible authority, and the scope and duration of the measure.

Ley 19.974: Intelligence Intercepts

Ley 19.974, which created Chile's National Intelligence Agency (Agencia Nacional de Inteligencia, or ANI), contains separate provisions for intelligence-related intercepts.

Article 24 of Ley 19.974 allows interception of telephone, computer, radio, and postal communications in investigations related to national security matters. Key safeguards include:

• A judge must authorize the intercept
• The order must identify the person and specify the form, scope, and duration
• Maximum duration is 60 days
• Attorney-client communications are protected unless the judge finds the attorney may be involved in the investigated conduct
• Intercepted files go directly to the prosecutor, who seals them and guarantees confidentiality
• If files become irrelevant, a copy is sent to the affected individuals and the prosecutor's copy is destroyed

Workplace Recording Laws in Chile

Labor Code Art. 154 bis: Employee Privacy

Article 154 bis of Chile's Labor Code establishes the employer's obligation to maintain confidentiality regarding employees' personal and private information accessed through the employment relationship. This provision creates a duty of care that limits what employers can do with information about their workers.

The broader constitutional framework reinforces this. Article 19, No. 4 of the Chilean Constitution guarantees the respect and protection of the private life and honor of every person and their family.

Employer Surveillance, CCTV, and Monitoring

Chilean labor regulations impose strict conditions on employer surveillance in the workplace:

• CCTV cameras must be oriented on a panoramic view and cannot be aimed at a specific employee
• Camera locations must be disclosed to employees and cannot be clandestine
• Cameras cannot cover recreation areas (dining rooms, rest areas) or spaces where no work activity occurs (bathrooms, lockers, dressing rooms)
• Employers must inform employees of all surveillance measures in the Internal Rules of Order, Hygiene, and Safety (Reglamento Interno de Orden, Higiene y Seguridad)
• Audio recording of employees is more restricted than video surveillance

Violations of these workplace surveillance rules may result in sanctions from the Direccion del Trabajo (Chile's labor inspection authority).

Employee Recordings as Evidence

Following the BCI ruling, recordings made by employees in the workplace may be admissible as evidence in labor disputes, provided the reasonable expectation of privacy test is satisfied. Key factors courts consider include:

• Whether the employee was a participant in the recorded conversation
• Whether the recording took place during a work meeting or in a context involving workplace rights
• Whether the employer had warned about confidentiality
• Whether the topic related to the employee's labor rights or the employer's obligations

The Supreme Court has upheld employee dismissals for recording meetings involving sensitive company topics without authorization. In a 2023 ruling, the Court confirmed the termination of a worker who recorded a work meeting addressing confidential business matters. Context matters significantly in these determinations.

Recording in Public Spaces

Recording in public spaces in Chile is generally permitted. Art. 161-A specifically limits its criminal prohibitions to "private premises or places not freely accessible to the public." This means that:

• Filming or photographing in streets, plazas, parks, and other public spaces is lawful
• Recording public events, protests, or government officials performing public duties is generally protected
• Security cameras in public areas operated by municipalities or businesses (facing public space) do not violate Art. 161-A

However, even in public spaces, you cannot:

• Record private conversations that you are not part of (third-party eavesdropping)
• Use recording to harass or stalk individuals
• Capture images in a manner that violates a person's dignity

The reasonable expectation of privacy framework applies contextually. Public officials performing their duties in government buildings may have a reduced expectation of privacy, as Chilean legal commentators have noted in recent debates.

Penalties for Illegal Recording in Chile

Penalty Breakdown by Offense

The penalties under Articles 161-A and 161-B use Chile's graduated imprisonment system. One Unidad Tributaria Mensual (UTM) is worth approximately CLP 69,889 as of March 2026 (roughly USD 70).

Offense	Imprisonment	Fine (UTM)	Fine (Approx. CLP)
Unauthorized recording/capture (Art. 161-A, para. 1)	61 days to 5 years	50 to 500 UTM	CLP 3.5M to CLP 35M
Dissemination of illegally obtained material (Art. 161-A, para. 2)	61 days to 5 years	50 to 500 UTM	CLP 3.5M to CLP 35M
Same person captures AND disseminates (Art. 161-A, para. 3)	3 years 1 day to 5 years	100 to 500 UTM	CLP 7M to CLP 35M
Blackmail using recordings (Art. 161-B)	3 years 1 day to 5 years	100 to 500 UTM	CLP 7M to CLP 35M
Blackmail where demanded act is criminal (Art. 161-B, para. 2)	Increased by one degree	100 to 500 UTM	CLP 7M to CLP 35M

The imprisonment range of "reclusion menor in any of its degrees" spans three levels:

• Minimum degree (grado minimo): 61 days to 540 days
• Medium degree (grado medio): 541 days to 3 years and 1 day
• Maximum degree (grado maximo): 3 years and 1 day to 5 years

Business Compliance and Practical Guidance

Organizations operating in Chile should take the following steps to ensure compliance with recording and privacy laws:

For call recording and customer communications:

• Obtain explicit consent before recording calls with customers or clients
• Provide clear notice that calls may be recorded
• Document consent mechanisms and retention policies

For workplace surveillance:

• Limit CCTV to common work areas with panoramic orientation
• Disclose all monitoring in the Internal Rules of Order, Hygiene, and Safety
• Never install cameras in bathrooms, lockers, dining areas, or rest rooms
• Avoid audio recording in the workplace
• Consult with the Direccion del Trabajo when implementing new surveillance measures

For meetings and negotiations:

• Establish clear ground rules about recording at the outset of sensitive meetings
• If confidentiality is important, communicate that expectation explicitly
• Be aware that participants may lawfully record under the BCI standard unless a strong privacy expectation is established

For data handling:

• Comply with employee data confidentiality obligations under Labor Code Art. 154 bis
• Prepare for the full implementation of Ley 21.719 (Chile's new Personal Data Protection Law), which becomes fully effective in December 2026

Chile's New Data Protection Law (Ley 21.719)

Chile's Congress approved Ley 21.719 on August 26, 2024, replacing the outdated Ley 19.628 from 1999. This comprehensive data protection framework will become fully effective in December 2026 after a 24-month implementation period.

Key provisions relevant to recording include:

• Explicit consent requirements for processing personal data, defined as free, specific, informed, and unequivocal
• Expanded legal bases beyond consent, including legitimate interests with balancing tests
• Creation of a Personal Data Protection Agency with enforcement powers
• Significant penalties for non-compliance

Any recording that captures personal data will fall under this law's requirements once it takes full effect. Businesses should begin adapting their recording and data handling practices ahead of the December 2026 deadline.

Frequently Asked Questions

Sources and References