To record telephone conversations, whether for the purposes of training or quality control, is a question that many businesses may consider. With the publicity that the Metropolitan Police Commissioner received earlier this year, the commonly misunderstood issue of recording telephone calls and its illegality, if any, was brought to light.
The case highlighted the importance of the two separate aspects to recording telephone conversations. The first being the recording of a telephone call itself, and secondly the intercepting of calls. Intercepting telephone calls requires ‘necessary authorisation’, such as a court order; without this authorisation, the act is illegal.
The law on recording telephone calls was originally set out in the Telecommunications Act 1984, but advances in technology, mobile phones and the ability to have conversations over the internet, led to the introduction of the ‘Communications Act 2003’. The new act deals with communication generally, but the regulations on the actual recording of telephone calls is not crystal clear. The Data Protection Act and the right to private life under the Human Rights Act will have a big impact on the recording of telephone calls, and if a recording is made without the consent of the other party and then passed on to a third party, this may amount to a breach of both laws.
Under the Regulation of Investigatory Powers Act 2000, recording of personal calls is permitted without the consent of the other party involved so long as no one else is involved in the recording, and the recording is not then passed on to an uninvolved party.
Depending on what the recording is for, companies are not always under an obligation to inform you that they are recording the telephone call. Many companies do however, include a short message at the start of the phone call informing you that they are recording the call. In the face of logic, it is impossible to ignore the ‘entrapment argument’ that a party was encouraged to say certain things for the recording that they did not believe to be true and, had they known about the recording, would not have made those particular comments.
In reality, if you are looking to use the telephone conversation as evidence of what was said or agreed over the phone, and a third party is brought in after the original conversation to settle the matter, it may be wise to inform the other party at the start of the call that the call is actually being recorded. This should then remove the argument that they were unaware that the call was being recorded and were ‘led’ into saying something that they didn’t actually believe.
If you have any queries regarding the recording of telephone calls, please contact Nasima Ansary on 01689 887877 or by email at nasima.ansary@cwj.co.uk
