It is widely (and incorrectly!) believed that it is unlawful in the UK in any circumstances to monitor and record telephone calls without drawing this to the attention of the parties to the call. There are in fact broad exceptions, relevant to many businesses, which do allow such activities.
There are several reasons why a business might wish to monitor or record telephone use for the purpose of its business. Some financial services firms, such as brokers and assets managers, are legally obliged to record calls, or to ensure that they are recorded by someone else, when they are executing transactions over the telephone. In other cases the rationale often is to record dealings with contracting parties, for quality control purposes or even to monitor compliance by an employee with internal or external regulatory requirements, but monitoring may also be useful to seek to ensure that employees are not misusing the communications facilities provided for them in the course of their employment. However, the law balances these legitimate objectives against the need to protect the privacy of employees and external callers.
Monitoring for legitimate purposes will generally be permitted provided employees are made aware that it is or may be happening and “so far as is practicable” steps are taken also to inform external callers of the possibility of monitoring. How this is communicated entails careful judgement depending on the precise circumstances. It is for this reason that many businesses include notices in their automated answering systems (or beside telephone numbers on letterhead) such as “your call may be monitored for quality purposes”.
Monitoring and recording of telephone use is regulated by two UK statutes, namely, the Regulation of Investigatory Powers Act 2000 (“RIPA”) which deals with “interception” of communications, and the Data Protection Act 1998 (“DPA”).
Regulation of Investigatory Powers Act 2000
RIPA regulates when a person may make an “interception of a communication in the course of transmission”. For its purposes, “interception” includes a “monitoring or interference” with a private telecommunications system which makes the communication available to someone other than the sender or recipient of the communication. This therefore includes listening in to and recording telephone calls.
In principle, unless an exception applies, any interception of a communication is unlawful (and, in fact, criminal) unless the consent of both the sender and recipient is obtained. For present purposes, the most relevant applicable exceptions to consider are those set out in the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (the “Regulations”). Under the Regulations, the exceptions that are relevant to most businesses - and entitle monitoring and/or recording - are where this is carried out for one or more of the following permissible purposes:
- To establish the existence of facts or to ascertain compliance with regulatory requirements, practices or procedures.
- To ascertain or demonstrate employee standards.
- For the purpose of preventing or detecting crime.
- For the purpose of detecting unauthorised use of the telecommunications system.
- To ensure the effective operation of the system.
In addition, monitoring (but not recording) of communications may be carried out without consent in the following circumstances:
- For the purpose of determining whether they are communications relevant to the business.
- To monitor communications to confidential anonymous counselling or support helplines.
It is important to note that, even where one of the exceptions outlined above applies, in all cases where consent is not obtained, the interception must be of a communication relevant to the business.
These exceptions are wide in scope and will normally permit much of the monitoring which an organisation would want to undertake, but there are two easy traps into which the unwary could fall.
First, a business must not intercept private communications. The problem which often arises in this context is the fact that, until a communication has been “intercepted” (i.e. monitored), it may well not be possible to know that the communication is private. It is easy to envisage a personal communication being inadvertently intercepted in the course of an otherwise permissible interception. No offence is committed where this situation is unavoidable and arises in the context of permitted monitoring. In other words, if in the course of the monitoring (or the playing back of a recording) it becomes apparent that the monitored communication is in fact private, the interception (or playing back) should cease.
Secondly, it is a requirement under the Regulations that a business must have made all reasonable efforts to inform all users of its telephone systems (normally, employees) that an interception of their telecommunications may take place. Both these requirements are consistent with obligations which arise under the applicable data protection regime, to which we now turn.
Data Protection Act 1998
The recording of telephone calls will also be within the scope of the DPA, as the information recorded will be “personal data” of an employee and (possibly) “personal data” of the external person (as the recording could be used to identify the caller). Merely monitoring (i.e. listening to) calls does not raise a DPA issue, but making notes of what is discussed might.
In relation to the recording of telephone calls, therefore, the data protection principles set out in Schedule 1 of the DPA must be adhered to. In particular, all processing of personal data must be “fair”. The potentially difficult issue here is that for such processing 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” (broadly, the party 'processing' the data) 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”.
Both the requirement that information only be provided “so far as is practicable” and the vague requirement to provide information which is “necessary” to be “fair” require an exercise of judgement. It is for this reason that many organisations do provide appropriate notice of recording of calls (“calls may be recorded for quality purposes”), for example by means of a recorded notice before the call is answered by a centre, on websites, and so on.
In respect of data relating to employees in particular, the Information Commissioner has published a detailed Employment Practices Data Protection Code (“Code”) which covers, amongst other things, recording and monitoring of employee calls. Although the Code is not strictly binding, the Information Commissioner has been clear that enforcement of the DPA in the employment context will be informed by relevant parts of the Code.
The Code sets out the core principles for monitoring of employee calls. Three key principles are:
- Proportionality - an employer should be clear as to why the monitoring and recording is required and should determine whether the reason for it is legitimate. Against this reasoning, the employer should consider whether the action is as unintrusive as possible. Employers should conduct an assessment of the impact of its monitoring in order to ensure the balance is appropriate.
- The Provision of Information to Employees - in order to comply with the first data protection principle, full information about the monitoring or testing should be supplied to the employee. The Code is clear that this should take the form of a written policy document, which should be brought to the attention of the employee.
- Technical / Security Measures - employers are required to safeguard against the unauthorised processing of data and this is equally applicable to recordings of calls.
- UK law requires that the privacy of private communications should be respected. If in the course of listening to a conversation it becomes clear that the conversation is private, the listener should stop.
- Subject to this, a telephone call can be monitored and/or recorded for a permissible purpose as specified in the Regulations.
- There is no need to tell external callers that calls will be monitored. Where such calls are recorded, however, it is good practice to bring this to the caller's attention, in order that the data, once recorded, is “processed” in a manner that is “fair”. Employees should be informed about the way in which data relating to them, including the monitoring and recording of telephone calls, is dealt with, and the aims of processing such data should be legitimate.
- Written policies on the monitoring and recording of telephone calls are always worth having both to make employees aware of the employer’s approach and to ensure that employees conduct themselves in a manner consistent with the regulatory framework
- These requirements apply in addition to any regulatory obligations, such as those contained in the FCA’s Conduct of Business Sourcebook (COBS), to record calls.