By Nigel Miller, Partner in Fox Williams LLP’s Commerce & Technology department
There are numerous reasons why businesses may wish to monitor and record telephone calls, from investigating suspected misconduct to recording complaints for training purposes. Whatever the reason for monitoring or recording telephone calls, businesses must be aware of the serious ramifications that unlawful monitoring and recording of telephone calls may have.
If you monitor and record telephone calls you must comply with the Regulation of Investigatory Powers Act 2000 (“RIPA”), the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) (the “LBP Regulations”) and the Data Protection Act 1998 (“DPA”). We discuss each of these in turn:
Under RIPA it is an offence to interfere with a system, monitor telephone calls or record telephone calls in order to make the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient. This is classed as an “interception of communication”. However, interception is lawful on a private telecommunications system, if both the person making the call and the person receiving the call have consented.
It is not illegal under RIPA to record the call for your own use only.
For the purposes of RIPA, employers may gain the consent of their employees to monitor and record calls through provisions in the employment contract.
The LBP Regulations set out circumstances in which interceptions of communications by or with the consent of the system controller (such as the employer) for purposes relating to monitoring or recording communications relevant to the system controller’s business are lawful. These include:
- establishing the existence of facts;
- ascertaining compliance with regulatory or self-regulatory practices or procedures; or
- monitoring the performance standards of staff.
In order to be lawful, the system controller must have made all reasonable efforts to inform every user of the system that communications might be intercepted.
A telephone call recording may contain personal data. Its processing is therefore subject to the provisions of the DPA. Under the DPA processing of personal data must be "fair" and “lawful”. To be "fair" the following information must be provided to the individual, "so far as is practicable":
- information regarding the identity of the "data controller" and the purpose for which the information is being processed.
- further information as is necessary, having regard to the specific circumstances in which data is processed, to enable the processing to be "fair".
You do not necessarily need the other party’s consent to make the recording but if you don’t have consent you need to have some legitimate reason.
It is good practice to advise the other party that the call will be recorded, but if this is not practicable then it is not an absolute requirement.
Getting consent to record a call
If you are relying on consent in order to record a call, there must be some action from which consent can be inferred, for example, the caller saying "yes" when asked or proceeding with a telephone call after hearing a message saying that calls are recorded.
Measures to help compliance
- You should not ordinarily record calls with a view to making the recording available to anyone other than yourself or the other party on the call, unless you have consent.
- If you record calls with a view to making the recording available to anyone other than yourself or the other party on the call, and you don’t want to get consent, then you must have a lawful basis for call recording under the LBP Regulations.
- If you record calls it’s good practice to notify the other party to the call at the outset and get consent. If the circumstances make this impracticable, then it’s not absolutely necessary.
- You should keep the recording secure and not keep it for longer than necessary.
Nigel Miller is a Partner in Fox Williams LLP’s Commerce & Technology department. He can be contacted on email@example.com
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