Call Recording: The Legal Position

The below is a brief summary of where the law currently (April 2008) stands in relation to general call recording. You should not rely on this information but instead ask a solicitor for their legal opinion.

The Legal Position

There are a number of laws which require certain obligations to have been met before telephone calls can lawfully be monitored.

(1) Regulation of Investigatory Powers Act 2000 ("RIPA")

An interception is only lawfully carried out if one of the following applies

(i) The person intercepting the call has reasonable grounds for believing that it has the consent of both the caller and the intended recipient of the call to intercept; or
(ii) The interception is carried out by a business in compliance with the Lawful Business Practice Regulations (see below.)

(2) The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (the "Regulations")

Interception is authorised if the business which is intercepting the call has made all reasonable effort to inform potential users that their communications may be intercepted, and the interception is then carried out:

(i) To establish the existence of facts (eg to evidence a business transaction);
{ii) To assess or demonstrate that standards "which ought to be achieved" are achieved (eg quality control and training standards);
(iii) To prevent or detect a crime, or for purposes of national security;
(iv) To assess compliance with regulatory practices or procedures applicable to the business;
(v) To investigate or detect unauthorised use of the communications system; or
(vi) To determine whether communications are relevant to the system controller’s business.

(3) The Data Protection Act 1998 ("DPA")

Recording (and use of recordings) where Company X would be able to establish the identity of either party to the call, either directly from the recording or from other information which it is conceivable that Company X could obtain, would require you to first:

(i) Have informed that party how the recording would be used;
(ii) Obtain consent for the recording to take place (This may be implied from the fact that the customer has been notified and not object, but it is you should obtain explicit consent if the call reveals any information classified as sensitive by the DPA, ie details of race/ethnic background, political opinion, religion, trade union membership, physical/mental health, sexual life, offences committed or legal proceeding bought.)
(iii) The obligations in relation to processing of that data also apply, so that the data must be kept for longer than necessary, under secure conditions and must be accessible to the customer at their request.

(4) The Employment Practices, Data Protection Code

This regulates employer/employee relations and so is more relevant to the monitoring of calls from your staff's point of view. The code states that employees should be informed about any monitoring of their calls and that their consent should be obtained (as required under the DPA.) The code does provide exemptions from this obligation, for instance where monitoring is necessary to investigate criminal activity, but with provisos, for instance specific examples of criminal activity should have been identified before monitoring begins.

(5) Human Rights Act 1998

The Act provides that "everyone has the right to respect for his private life and family life, his home and his correspondence". Legal cases involving the monitoring of phone calls have recommended that to ensure that this right is protected employees whose calls are monitored should be given access to a private line over which personal calls can then be made, during their lunch break for example.

(6) Codes of Practice – FSA Handbook – Code of Business Handbook and Direct Marketing Association's Code of Practice

Neither code adds any material requirements to the points made above.

(7) Telecoms License obligations – The Service Provision License

Private and business use of a telephone system is regulated by certain DTI licenses. These include a similar requirement to that set by the Regulations that "every reasonable effort" to inform parties to a telephone conversation that recording may take place should be made.

Conclusions

A common theme through the above pieces of law is the requirement to inform all parties to a monitored/recorded call in advance that their conversation will be recorded. This requirement applies in respect of Company X’s staff just as much as it does in respect of its customers.

It enables you to record calls, but the obligation to inform customers that the calls are being recorded is not overridden.

The Regulations require that all reasonable efforts to inform participants to a call be made.

Mentioning the fact that your calls will be monitored / recorded in customer documentation or adverts is the absolute minimum step which you should take to comply with the Regulations' prior information requirement. Ideally at the beginning of a monitored/recorded call customers should also be:

informed that recording will be taking place (as required by the Regulations and the DPA) ;
informed of the purpose of the recording/how it will be used, eg for training and monitoring purposes (as required by the Regulations and the DPA); and
asked to consent to this (as required by the DPA.)

The requirement to obtain consent should always be observed where sensitive data (as defined by the DPA) is obtained from the individual concerned.

Where recording/monitoring takes place in the course of business (as opposed to detect a crime) staff should be notified which phone lines/types of calls will be monitored and should be asked to consent to this happening.

Call Recording Legal Advice »