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The Legal Position Regarding Telephone Recording
There are a number of laws which require certain obligations to have been met before telephone calls can lawfully be monitored.
(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
(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);
(3) The Data Protection Act 1998 ("DPA")
Recording (and use of recordings) where Company X would be able to establish the identity of either party to the call, either directly from the recording or from other information which it is conceivable that Company X could obtain, would require you to first:
(i) Have informed that party how the recording would be used;
(4) The Employment Practices, Data Protection Code
This regulates employer or employee relations and so is more relevant to the monitoring of calls from your staffs point of view. The code states that employees should be informed about any monitoring of their calls and that their consent should be obtained as required under the DPA. The code does provide exemptions from this obligation, for instance where monitoring is necessary to investigate criminal activity, but with provisos, for instance specific examples of criminal activity should have been identified before monitoring begins.
5) 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". Legal cases involving the monitoring of phone calls have recommended that 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.
(6) Codes of Practice FSA Handbook Code of Business Handbook and Direct Marketing Associations Code of Practice
Neither code adds any material requirements to the points made above.
(7) 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.
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")
***Effective 8th March 2012***
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