Can I record telephone conversations?

(I AM IN THE PROCESS OF REVISING THIS ARTICLE TO MAKE IT MORE COMPREHENSIVE, PARTICULARLY IN THE LIGHT OF COMMENTS)

A client asked me the other day if it was legal to tape a phone conversation. I thought this would make a good blog item and general guide.

Recording the telephone calls is an interception under:

• The Regulation of Investigatory Powers Act 2000 (RIPA);
• The Data Protection Act 1998 (DPA);
• The Telecommunications                 (Data Protection and Privacy) Regulations 1999; and
• The Human Rights Act 1998.

If you intercept a call without lawful authority, you commit a criminal offence. This may lead to criminal liability (that is, you might get prosecuted) or civil liability (someone could sue you for breaching the statutory provisions of RIPA.
 

The Home Office has a dedicated website dealing with RIPA, although its very much biased towards the police and security services in terms of its coverage of the Act.

The DTI has a small section of its website about this but it doesn't contain that much information. It seemed to have had a previous site, but the link seems to have broken.

Personal situations
RIPA does not prevent individuals recording telephone conversations for their own personal use. However, disclosing the recording to a third party (that is, someone who was not one of the participants in the call) without consent of the call participants is illegal. This means that you do not need to tell the other person that you are recording the call provided that you never intend to let anyone else hear it. If you want to disclose the recording, you will need the permission of the other participants.

Business situations
The monitoring of a system constitutes a type of “interception”. The recording of a call is also "interception". However, there are two ways in which an interception can be lawful:

• The interceptor must have reasonable grounds to believe that both the caller and call recipient have consented to the interception; or
• Where the interception is for legitimate business purposes, made for the carrying on of that business, it must be authorised by the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (Regulations).

The Regulations specify a number of lawful reasons, including:

• Monitoring or recording communications:
• to establish the existence of facts, to ascertain compliance with regulatory or self-regulatory practices or procedures or to ascertain or demonstrate standards which are or ought to be achieved (quality control and training);
• in the interests of national security (in which case only certain specified public officials may make the interception);
• to prevent or detect crime;
• to investigate or detect unauthorised use of telecommunication systems or;
• to secure, or as an inherent part of, effective system operation;

• monitoring received communications to determine whether they are business or personal communications;
• monitoring communications made to anonymous telephone helplines.
     

However, the monitoring of employees in the workplace raises issues under the DPA. The Information Commissioner's Office has produced the Employment Practices Code (PDF) that includes, in part 3, good practice guidance about monitoring at work. The Supplemental Guidance document (also PDF) contains further information too, and page 59 contains a great flowchart that may help you in working out if your monitoring/recording is allowable. I reproduce this below in accordance with the ICO's guidance on Copyright & Re-use of Materials:

Employers in the public sector need to be aware o the provisions of the Human Rights Act.

Conclusions
In the business context, it should be clear that this is a complicated topic and any business wanting to make use of call recording features will almost certainly need to put in place or amend its policies on data protection and use of the company's communications facilities by staff.

Comments

[Zoe]

Thanks Andrew, very interesting. Could you clarify the situation for journalists recording telephone interviews? I think from what you have said it would be ok, provided it is not disclosed to a third party.

[Andrew Mills]

Thanks for the feedback Zoe. Yes, the same point applies really - OK as long as you don't disclose it to anyone. I guess the danger with a journalist's position is that if the person later denies what they told you the temptation will always be to publish the recording in some way. By far and away the safest option is to be completely up-front. You can soften it, by using an approach like, "My hand-writing is rubbish, do you mind if I record this?" or, "So that I can concentrate on what you are saying rather than making notes, would you mind if I record this". If you are in the National Union of Journalists (http://www.nuj.org.uk) you can get some free legal advice if you need it in a specific situations.

[geeklawyer]

I agree with the business assessment but not entirely with the personal use assessment. The language of RIPA would exclude its application to any recordings made in the course of normal personal use. Nor would it seem to me to be necessary to get the consent of the other party so long as one is a party to the call.

As for disclosing, in a private context, the contents of the phone recording to third parties a claimant would be dependant on constructing some equitable and/or Article 8 argument. While this would be doable it would depend, following the Campbell and Douglas cases etc, on the context of disclosure: far too to vague a position to make bold assertions like 'you will need the permission of the other participants'.

[Sofia]

Hello, I am hoping that someone out there can assist me by providing some clarification on recording meetings and such at work. I would like to know that if your employer repeatedly lies and falsifies records of meetings (acts of fraud) can you use tape such meetings? Moreover, can you use these tape recordings in an employment tribunal / court? Also, what are the implications of the Public Interests Disclosure Act (PIDA) 'Whistleblowers' on making and using such recordings without disclosure or consent of the other parties? I hope someone out there can assist me. Thanks. Sofia