Call recording and UK legislation

Call recording is a process where a party will record a conversation over the telephone. There are many reasons why this is useful;

  • Provide evidence of a business transaction
  • Ensure that a business complies with regulatory procedures
  • See that quality standards or targets are being met in the interests of national security
  • Prevent or detect crime to investigate the unauthorised use of a telecom system
  • Secure the effective operation of the telecom system

As long as the reason for recording is one of the above and you are not intending to make it available for a third party, it is not necessary to get consent for recording. If you are recording for any other purpose such as marketing or market research etc, then consent is required from the third party.

The relevant legislation is as such;

(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

(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 you can determine the identity of either party to the call, either directly from the recording or from other information, 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 objected, but 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) 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”. 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.

(5) 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.

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