| Legality of the products There are two issues when it comes to recording: - Is the actual equipment you are using as a recording interface legal?
- Is it legal to use it to record telephone calls?
Legality of the recording interface The equipment we sell is all CE marked to comply with European legislation for safety and electromagnetic emissions and immunity.
Part of this law is that the user should be protected from any potentially dangerous voltages. It is considered that the telephone line can have dangerous voltage from which the public needs to be protected. All of the interfaces (connectors) we supply have an electronic barrier inside that is designed to meet the specification of protecting the user from 1000V for 1 minute. Some telephone recording interfaces from consumer stores - even well-known ones - may actually contain no barrier at all, or a barrier that will not withstand the specified voltages. Whilst this is potentially dangerous, it is legal due to a quirk in the law that says that if an interface is not sold as a complete telephone recording kit, and only as a telephone connector, then it is fine. It would not be legal to sell these recording connectors in combination with a recorder, or at least not without printing warnings on all the relevant parts about not touching any metal which would connect you to the potentially dangerous telephone line. In short, the recording interfaces (connectors) we sell are safe and legal to be sold on their own or in combination with a recorder. • Legality to use the equipment to record telephone calls This is dealt with below, as follows: • Legality of recording at home Whilst Ofcom says that when recording calls at work every reasonable effort should be made to inform all parties to a call that it may or will be recorded, silently monitored or intruded into, the latest information from them for recording at home is different. The following information is taken verbatim from Ofcom's website: Recording and monitoring telephone calls or e-mails
A general overview of interception, recording and monitoring of communications The interception, recording and monitoring of telephone calls is governed by a number of different pieces of UK legislation. The requirements of all relevant legislation must be complied with. The main ones are: - Regulation of Investigatory Powers Act 2000 ("RIPA")
- Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 ("LBP Regulations")
- Data Protection Act 1998
- Telecommunications (Data Protection and Privacy) Regulations 1999
- Human Rights Act 1998
It is not possible to provide comprehensive detail of that legislation here. Any person considering interception, recording or monitoring of telephone calls or e-mails is strongly advised to seek his/her own independent legal advice and should not seek to rely on the general information provided below. It should be borne in mind that criminal offences and civil actions may occur when the relevant legislation is not complied with. Accordingly, Ofcom accepts no liability for reliance by any person on the following information. Can I record telephone conversations on my home phone? Yes. The relevant law, RIPA, does not prohibit individuals from recording their own communications provided that the recording is for their own use. Recording or monitoring are only prohibited where some of the contents of the communication - which can be a phone conversation or an e-mail - are made available to a third party, i.e. someone who was neither the caller or sender nor the intended recipient of the original communication. For further information see the Home Office website where RIPA is posted. Do I have to let people know that I intend to record their telephone conversations with me? No, provided you are not intending to make the contents of the communication available to a third party. If you are you will need the consent of the person you are recording. Can a business or other organisation record or monitor my phone calls or e-mail correspondence with them? Yes they can, but only in a limited set of circumstances relevant for that business which have been defined by the LBP Regulations. The main ones are: - to provide evidence of a business transaction to ensure that a business complies with regulatory procedures
- to see that quality standards or targets are being met in the interests of national security
- to prevent or detect crime to investigate the unauthorised use of a telecom system
- to secure the effective operation of the telecom system.
In addition, businesses can monitor, but not record, phone calls or e-mails that have been received to see whether they are relevant to the business (i.e. open an employee's voicemail or mailbox systems while they are away to see if there are any business communications stored there). For further information see the BERR website where the LBP Regulations are posted. However any interception of employees' communications must be proportionate and in accordance with Data Protection principles. The Information Commissioner has published a Data Protection Code on "Monitoring at Work" available on its website. The Code is designed to help employers comply with the legal requirements of Data Protection Act 1988. Any enforcement action would be based on a failure to meet the requirements of the act - however relevant parts of the Code are likely to be cited in connection with any enforcement action relating to the processing of personal information in the employment context. Accordingly this Code of Practice and the Data Protection Act must also be considered by any business before it intercepts employees' communications. Do businesses have to tell me if they are going to record or monitor my phone calls or e-mails? No. as long as the recording or monitoring is done for one of the above purposes the only obligation on businesses is to inform their own employees. If businesses want to record for any other purpose, such as market research, they will have to obtain your consent. What do I do if my calls have been recorded unlawfully? Under RIPA it is a tort to record or monitor a communication unlawfully. This means that if you think you have suffered from unlawful interception of your phone calls or e-mails you have the right to seek redress by taking civil action against the offender in the courts. • Legality of recording conversations with customers: UK Law How are recordings used, are they used in court? Is recording conversations legal? What is British telephone recording law? It is surprising how seldom a recording is used in court, we almost never hear of it. This is partly because most recordings are used for sales training or note taking. However when it is used for recording agreements in most cases the recording helps to diffuse the dispute, rather than to escalate it. The reason for this is that most disputes escalate because one party thinks that the other party is being difficult, lying, or is not fulfilling what they committed to. Suppose in your company you have a dispute with a customer about what was agreed on the phone, and you listen back to the recording. There are three possibilities. One is that you can hear that the customer is absolutely right, and so you give in with an easy heart. Another possibility is that you are right and the customers is clearly wrong. You then have a choice of playing the recording to the customer and then normally the customer will back down, or you may still give them what they want, but at least you know that your systems are correct, and the customer knows that you are being generous. The third possibility is that you can hear from the recording that no clear agreement was made; the customer says "I will buy it for £100, and your agent says "OK, £110 it is", and the the customer says "that is good, here is my credit card for £100", and the agent replies "we will charge £110", and it is possible to hear that the conversation was confused, and so it is much easier to come to a satisfactory outcome. We heard of a doctor's night service that used to receive complaints from patients which took a great deal of time to resolve. They started recording the calls that they received. Then whenever they had a complaint, they used to say to the patient "we are very sorry that you are not happy, and as a reputable organisation that cares about your health and how we look after you we want to make sure that we do the right things, and do what we say that we do; please come into the surgery, we will listen to the call together and correct whatever it is that we did not do as we said". When the calls were listened together with the patient they could both hear that in many cases the patient had the details wrong, the times wrong, the name of the doctor wrong - so much so that 80% of the complaints just evaporated. Think of the similar savings in time and improvements in customer service that could be made in your organisation. What is ethical? There is a clear distinction about what is ethical when recording calls as well as is recording conversations legal. In the normal business situation you record your own calls for use in training, customer service or to resolve issues with customers and in these cases you know what was said because either you or one of your employees was a party to the call in the first place. The call will only be used within the company or perhaps with the customer. It does not seem to us that there is any ethical difference between having a telephone conversation and telling a colleague about it or having a telephone conversation and letting a colleague listen to a recording of it. There is a parallel between receiving a letter and telling a colleague about it, or letting them read the letter. The only difference between the colleague reading the letter or listening to the recording or being told about them is that by reading or listening to the original they know word for word what was said. What is not ethical would be for someone else, for example a competitor, to bug your offices or telephone lines and so to learn your commercial secrets. Note that in this case the competitor was not one of the parties to the original telephone call, nor would they notify you that the call was being recorded. UK law rightly makes such third party interception where neither party to the call knows that the call is being recorded illegal except by the Police for law enforcement, which is outside the scope of this advice. Factors in the growth of recording Several factors have contributed to the growing practice of recording or monitoring telephone conversations at the work place in recent years. Within the financial services sector it has become widely accepted even where it is not strictly a regulatory requirement. The growth of call centres has led to a significant expansion in the amount of business done by telephone. The need to ensure customer satisfaction, to train and supervise call centre staff, to achieve quality targets, to have a record of what was said in the event of a subsequent dispute - all these have inevitably led to widespread monitoring and recording of calls. The rules Where organisations do feel it necessary to record or monitor calls - for whatever reasons - the rules under which they do so have been set by the Privacy of Messages condition of the major two telecoms class licences - the Self-Provision (SPL) and Telecommunication Services (TSL) Licences. The most fundamental requirement of this condition has been that every reasonable effort is made to inform all parties to a telephone conversation that it may or will be recorded.
Here is an extract of the relevant section of the SPL/TSL: The Privacy of Messages condition of the Self-Provision Licence (SPL) and the Telecommunication Services Licence (TSL) (7.1) The Licensee shall not use or allow to be used any Apparatus comprised in or connected to the Applicable Systems (except for Apparatus connected to or comprised in the Applicable Systems for the purpose of law enforcement or in the interest of national security) which is capable of recording, silently monitoring (except for monitoring where the meaningful content of the Message is not monitored) or intruding into Live Speech Telephone Calls, unless he complies with paragraphs 7.3 and 7.4. This paragraph shall not apply if the Licensee is an Emergency Organisation or if the Director has consented to the Licensee not complying with any or all of paragraphs 7.3 and 7.4 and has not withdrawn that consent.
(7.2) The provisions of each consent given under paragraph 7.1 shall be entered in the register kept by the Director for the purpose of section 19 of the Act.
(7.3) The Licensee shall make every reasonable effort to inform parties to whom or by whom a Live Speech Telephone Call is transmitted before recording, silent monitoring or intrusion into such Call has begun that the Live Speech Telephone Call is to be or may be recorded, silently monitored or intruded into.
(7.4) The Licensee shall maintain a record of the means by which parties to whom or by whom a Live Speech Telephone Call is transmitted have been informed that such Call is to be or may be recorded, silently monitored or intruded into. The Licensee shall furnish to the Director such information on request. How does Ofcom explain what the above rules mean? The following is a verbatim extract from "Explanatory Guide to the Self Provision Licence (SPL) and the Telecommunications Services Licence (TSL)": "18. The condition provides that you should make every reasonable effort to inform all parties to a call that it may or will be recorded, silently monitored or intruded into. The particular means by which you choose to do this are not specified in the condition. Acceptable options, depending on circumstances, might include warning tones, pre-recorded messages, spoken warnings by the operator or written warnings included in publicity material, telephone directories, contracts, terms of business, staff notices, etc. It may not always be possible to warn first-time callers with whom you have had no previous contact but what is important is that you have a systematic procedure in place which provides the necessary information wherever this is a realistic possibility." At the beginning of the guide Ofcom say that they offer "a helpful interpretation of the licences" that has "no legal standing of its own" and "While it is Ofcom's responsibility to enforce licence conditions, their interpretation is ultimately a matter for the courts." Nevertheless, as they say themselves, Ofcom are the body responsible for enforcing these conditions and from the italics that we have put in you can see how flexible Ofcom are in this matter. How are companies letting people know that calls are recorded? Although the condition does not specify precisely how the parties should be informed, most people will now be aware of how many firms are conforming to the requirement. Advertisements that invite calls to a given number, whether the advert appears as a poster, on television or radio or in the print media, frequently carry a message to the effect that calls may be recorded or monitored for quality. Warnings can also be given in literature, terms and conditions, letterheards and on websites. Really the recording of calls now is almost becoming the norm as can be seen by the notifications in advertisements, as companies address the issue, however much or little recording that they do. How does Ofcom themselves let their callers know that Ofcom may record them? If you are concerned that your company should be giving a voice announcement before each phone call is put through to let callers know that the call may be recorded, you may find it interesting that Ofcom themselves do not give such a voice announcement that calls may be recorded. They do however advertise it on their website as below: "Please note that calls to the Contact Centre may be monitored or recorded' Further information What has been written above should be all you need to know about recording in your company, but for further background information including when you can record without the parties consent (i.e when you have not notified them in advance) see the page on this site where we have posted the Lawful Business Practice Regulations or see the BERR website directly. • Legality of recording Employees' telephone conversations The legality of recording phone conversations is considered here from the employee and employer perspectives in the work place. The legality of recording telephone conversations is somewhat different if the issue concerns what the employee says to the customer, or if the employee makes a private call. The legality of phone taps is different in each of these situations and could be considered surveillance if the employee cannot make a private call from work that is not recorded. There are two government organisations that have a view on this: Ofcom and the Information Commissioner. The Ofcom information is shown below, and you can research the Information Commissioner's Office information on "Monitoring at Work" at the ICO website. Ofcom At the request of the Home Office on 19th August 1999 Ofcom published new guidance to companies covering their responsibilities over recording phone calls for business purposes. Companies and organisations that routinely record telephone calls must ensure that their employees are able to make personal calls that are not also recorded under the same system. Staff must also be made aware that personal conversations could be recorded on their telephone and must have access to a separate telephone on the premises where they can make and receive personal calls that are not recorded. Companies that do not provide this guarantee of confidentiality could be in breach of Article 8 of the Europe Convention on Human Rights which covers people's right to privacy. The Ofcom guidance is intended to help companies in the private sector and follows a recent Home Office circular issued to all public bodies on this matter. The Home Office circular was issued in response to the European Court of Human Rights (ECtHR) decision in June 1997 on the case of Halford vs UK. The essence of the judgment was that interception of a person's office telephone can constitute an interference with the right to respect for their private life established under Article 8 ECHR. Where this is so, the interception must be carried out in accordance with the law and there must be an effective remedy. Because UK law relating to interception does not currently extend to non-public telephone networks, this form of interception could not be carried out in accordance with the law and consequently there was no effective remedy. Recording telephone conversations on private networks: 1. This note contains new advice to companies that provide telephone services to their employees. This is published at the request of the Home Office who wish to alert such companies to a new and important legal interpretation of their obligations concerning the privacy of their employees' telephone calls. This advice is necessary to ensure that the UK is compliant the European Convention on Human Rights (ECHR) and a recent ruling in the European Court of Human Rights (ECHR). If you run a company or are in any way responsible within your company or organisation for the provision of telephone services, you need to read, understand and act on this new advice. This includes any organisation that runs its own switchboard, call centre or other type of private voice network. The Present Position 2. Several factors have contributed to the growing practice of recording or monitoring telephone conversations at the work place in recent years. Within the financial services sector it has become widely accepted even where it is not strictly a regulatory requirement. The growth of call centres has led to a significant expansion in the amount of business done by telephone. The need to ensure customer satisfaction, to train and supervise call centre staff, to achieve quality targets, to have a record of what was said in the event of a subsequent dispute - all these have inevitably led to widespread monitoring and recording of calls. 3. Where organisations do feel it necessary to record or monitor calls - for whatever reasons - the rules under which they do so have been set by the Privacy of Messages condition of the major two telecoms class licences - the Self-Provision (SPL) and Telecommunication Services (TSL) Licences. The most fundamental requirement of this condition has been that every reasonable effort is made to inform all parties to a telephone conversation that it may or will be recorded. Annex 1 provides an extract of the relevant section of the SPL/TSL. 4. Although the condition does not specify precisely how the parties should be informed, most people will now be aware of how many firms are conforming to the requirement. Advertisements that invite calls to a given number, whether the advert appears as a poster, on television or radio or in the print media, frequently carry a message to the effect that calls may be recorded or monitored for quality. Why new guidance now? 5. Effective as the SPL/TSL rules have been they were not designed to address the broader legal issues, pertaining to privacy, that can arise with recording and monitoring. These rules effectively regulate how an organisation should give relevant parties warning about recording or monitoring, but do not fully elaborate the privacy rights of employees in the workplace. The new advice, based on the ECHR judgment, focuses on the reasonable expectation of privacy that employees are entitled to in the workplace - an entitlement conferred by the European Convention on Human Rights that is going to be incorporated into UK law by the Human Rights Act 1998. 6. The purpose of the new Home Office guidance is to clarify what employers need to do now, in advance of proposed legislative changes, to comply with the Convention and the lessons learned from the judgment. 7. Under the new advice, the present SPL/TSL rules remain valid, but the new Home Office advice is based upon the principle that "everyone has the right to respect for his private and family life, his home and his correspondence" established by the European Convention on Human Rights. It may not therefore be sufficient simply to warn employees that their phone calls at work may be recorded or monitored in order to remove their expectation of privacy. This is because it is not reasonable to assume that people at work will never make or receive calls touching on personal and domestic matters. One lesson to be drawn from the judgment is that there is a legitimate expectation of privacy for such calls. 8. This means that there has to be some way in which employees at work can make or receive personal calls that will not be recorded or monitored. The circular suggests that one way of doing this would be for an employer to provide adequate access to payphones in the workplace with an undertaking that they will not be subject to any form of recording or monitoring. However this is not the only way of meeting this objective. The key issue is that there are some lines at work which members of staff can use for private calls secure in the confidence that calls made from them will not be recorded or monitored. 9. It is equally important that employees continue to be informed that recording or monitoring may take place on official work phones, as already required by the SPL/TSL. The main reason for this is that once there has been a clear explanation that calls made on a particular system may be recorded or monitored, anyone making calls on that system is acknowledging the possibility that those calls may be recorded or monitored. This can be interpreted as implied consent and removes the expectation of privacy. As Ofcom has previously advised, the necessary information can be given within a work environment in a number of ways including terms and conditions of employment, staff notices, posters and global e-mails. 10. External callers also need to be advised of the possibility of recording or monitoring. Companies have devised a number of appropriate ways to meet this requirement, including the use warnings in advertising and customer literature. What else should be done? 11. Although it may not be a strict legal necessity, it is certainly good practice to explain to staff why their calls might be recorded or monitored. Moreover this will offer a higher degree of protection in the case of a legal challenge. Employers should develop guidelines covering their policy on recording and monitoring in the workplace and the use they will make of the material derived from it. 12. It is however advisable to restrict recording and monitoring activities to situations where they are both absolutely necessary and proportionate to the problem to be overcome. For example, misuse of office phones could be detected by an itemised call record, which is less intrusive than recording or monitoring of the actual calls. Conclusion 13. In conclusion, the main lessons to be drawn are that employees in the workplace are entitled to privacy for any personal calls they may make; that their expectation of privacy for work-related calls must be removed by adequate warning and that where their privacy is affected it must be for some purpose which is both reasonable and proportionate. |