1. What are the call recording laws in the UK?

The interception, recording and monitoring of telephone calls is governed by a number of different pieces of UK legislation. The main being:

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

Moreover, according to the Data Protection Act 1988, in order to record a call where a company is able to identify the identity of either party involved in the call, it has to:

Inform the other party how the recording will be used
Obtain permission for the call to be recorded
Data to be kept in a secure location - accessible when requested

2. Why record calls and how are they used?

Call recording is used for a number of different reasons. Every organisation or individual will have a specific need they are trying to fulfil by recording calls.

From a business prospective, call recording can help a business comply with strict regulations, pass legal controls, resolve potential disputes with customers as well as support with employee training and customer quality assurance.

Here is an example of one of the many ways call recording can benefit an organisation.

Suppose a company has a dispute with a customer about what was agreed on the phone. If the company have a call recording system in place, they would have three possible outcomes:

Listen back to the recordings and establish that the customer is right and work towards making them happy
The company is right and the customer is wrong. They now have a choice of playing the call recording to the customer in order to clear their name and make amends. They may still give them what they want, but at least they know that their systems are correct, and the customer also knows the company is being generous.
The recording establishes that no clear agreement was made; For example: The customer states "I will buy it for £100 then”, your agent says "OK, £110 it is", and the customer says "that is good, here is my credit card for £100", and the agent replies "we will charge £110”. It is possible to hear that there was a miscommunication between both parties.

This is just an example of how call recording can potentially help solve any misunderstanding a business might have with a customer.

In addition to this, there are numerous other reasons why call recording might want to be implemented, such as:

Provide evidence of a business transaction,
Ensure that a business complies with industry standards and regulatory procedures,
See that quality standards or targets are being met,
Protect national security,
Prevent or detect crime,
Investigate the unauthorised use of a telecommunications system, or
Secure the effective operation of the telecommunications system.

As well as for:

Training purposes
Quality Monitoring
Fact verification

3. Is call recording ethical?

At Business Systems we feel that there is a clear distinction to be made about what is considered ethical and what is not when recording calls.

In short, if all parties involved in the call are aware the call is being recorded and might be used for specific purposes (such as training, customer service or dispute resolution) and the call is used internally or shared with the customer in question, there are no ethical issues. It’s almost like 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. (I’m not sure if this makes sense? Reading over it now it doesn’t make sense to me I had to read this twice..)

What is not considered ethical is for someone else, for example a competitor, to bug your offices or telephone lines in order to learn your commercial secrets. By virtue of this example, the competitor was not a party in the original telephone call, nor would they have notified 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.

4. Can I record telephone conversations on my home phone?

Yes -the relevant law, RIPA, does not prohibit individuals from recording their own calls as long as the recording is for their own use. Recording without notification is prohibited where some of the contents of the communication—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.

5. 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.

6. Can a business or other organisation record or monitor my phone calls?

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:

Provide evidence of a business transaction,
Ensure that a business complies with regulatory procedures,
See that quality standards or targets are being met,
Protect national security,
Prevent or detect crime,
Investigate the unauthorised use of a telecommunications system, or
Secure the effective operation of the telecommunications 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; for example 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 DTI 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" which is available to view on their website by clicking here. 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.

7. Do businesses have to tell me if they are going to record or monitor my phone calls?

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 for monitoring and quality purposes. Warnings can also be given in literature, terms and conditions, letterheads and on websites.

Nonetheless, businesses are under no obligation to inform you if they are recording calls for any of the following reasons to:

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

However, if businesses want to record for any other purpose, such as market research, they will have to obtain your consent.

You may find it interesting that Ofcom themselves do not give any announcement on calls 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'

8. Can you access a company’s call recordings?

Although it is rarely used these days, customers appear to have a legal right to apply to be given a copy of these recordings. Under the Data Protection Act, there is a standard right to apply to organisations which hold personal information about you. This is known as a 'subject access request' (i.e. you're asking to be sent information about yourself), and it applies to private companies as well as public organisations.

9. How long can call recording be kept for?

The length of time you will be required to keep call recordings will depend largely by the industry you operate in.

There is a distinct lack of clarity on retention periods for call recordings in the financial services market. Some say call recordings must be retained for 6 months whereas the original FCA policy document suggests 3 years.

Why is this so important? Failure to deliver call recordings when required can result in unfavourable litigation, costing an organisation millions in terms of legal costs and damages.

10. Factors in the growth of recording

Several factors have contributed to the growing practice of recording or monitoring telephone conversations in 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 contact centres has brought significant expansion in the amount of business being carried out via telephone. The need to ensure customer satisfaction, to train and supervise contact centre staff, to achieve quality targets, to have a record of what was said in the event of a subsequent dispute – have all inevitably led to the widespread monitoring and recording of calls.

The rules

Where organisations 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 may 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 state 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.