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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, Oftel 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,
ie 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
(ie 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" available on its website 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.
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.
(If you have
been following the steps to contact Oftel and this FAQ has not helped
then proceed to Step
3)
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