I recently conducted a series of interviews that were quite sensitive in nature. This used to be a common occurrence for me. Today, it is less so. The prevalence of small electronic recording devices has curtailed my willingness to conduct such interviews. My concern is that you never know where the recording will go, nor do you know how it will be used or edited. You have no knowledge of the motives, ethics, or interests of the people who may at some point possess the recording.
Libel happens when you publish or make public a statement that is untrue about someone. Any investigator may inquire about things that prove to be untrue during an interview. Ask yourself what might happen if a snippet of the interview is published and it contains questions about something that was later proven untrue. The concept of the libelous question is well established in law. Investigators may have a certain privilege to ask questions but, this won’t stop someone from suing you. The public disclosure of private facts that might be part of an interview also causes concern. What if the interview reveals information that is not of public concern, and the release of which would offends someone? Unlike libel, truth is not a defense for what may be seen as an invasion of privacy.
You can never be certain that a recording device is not present. As a private investigator, I cannot search people and confiscate their electronic devices. Private investigators do not have any control over the people they interview, nor do they usually have control over the physical surroundings in which the interview occurs. This alters the nature of the questions asked and how they are put to the interview subject.
An extreme example from the U.S.A is one where a defense lawyer sat down with a prospective client in San Juan, Puerto Rico and asked about the GPS bracelet required by as a condition of bail. The prospective client told the lawyer that, “They speak to me through that thing”. He filed a motion at the Puerto Rico State Superior Court to have the device removed before he interviewed prospective client. During that motion, he learned that it could be used to eavesdrop on their conversation without the lawyer or prospective client knowing. (http://www.thecrimereport.org/news/inside-criminal-justice/2013-10-caution-your-gps-ankle-bracelet-is-listening) A recording knowingly made by the interview subject is not the only thing investigators need to consider.
This does not mean that every question will result in a libel action or that every room is bugged. It does mean that being dragged into an expensive libel action or media circus is something to consider before you start asking questions – especially ones that are sensitive.