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Subject: FW: Recording of Telephone Calls
From: Patricia Dowling <[log in to unmask]>
Reply-To:Irish and N. Irish Law
Date:Tue, 19 Oct 2004 15:07:19 +0100
Content-Type:text/plain
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text/plain (156 lines)


 
This e-mail is not legal or other advice and is for information purposes
only
 
The following questions in relation to the recording of telephone
conversations were being discussed on the IrishLaw discussion forum:
 
1.       Does anyone know the law on recording phone calls? 
 
2.       Does the caller have to be told that a call will / may be
recorded?
 
3.       If a call is recorded without telling the person, could the
conversation be used to say enforce a contract etc?
 
I have attempted to answer these three frequently asked questions below.

 
Question 1
 
The recording of the conversation by a third party without the consent
of one of the parties to a telephone conversation would be an illegal
interception and a criminal offence for the purposes of section 98 of
the Postal and Telecommunications Services Act, 1983 as amended by
section 13 of the Interception of Postal Packets and Telecommunications
Messages (Regulation) Act, 1993 ('the 1993 Act'). Section 13 of the 1993
Act provides that the definition of 'intercept' 'does not include
listening or recording where either the person on whose behalf the
message is transmitted or the person intended to receive the message has
consented to the listening or recording (my emphasis). Section 13 (3) of
the 1993 Act provides as follows:-
 
'The following subsections are hereby substituted for subsection (5) of
the said section 98:
 
(5)        A person who discloses the existence, substance or purport of
a telecommunications message that was transmitted by the Minister before
the vesting day and intercepted or who uses for any purpose any
information obtained from any such message shall be guilty of an
offence.
 
(6)        In this section 'intercept' means listen to, or record by any
means, in the course of its transmission, a telecommunications message
but does not include such listening or recording where either the person
on whose behalf the message is transmitted or the person intended to
receive the message has consented to the listening or recording, and
cognate words shall be construed accordingly.'
 
It appears therefore that if the consent of one of the parties to a
telephone conversation has been obtained, no offence will have been
committed by merely recording the conversation. One of the other
questions that frequently arises is the law in relation to the practice
of many businesses of recording conversations with their customers, or
prospective customers, normally for training purposes. In this
situation, the interaction does not involve interception by a third
party. The practice of most well run businesses is to provide for
consent to recording of telephone conversations in their standard terms
and conditions for their goods and/or services. Where no contract has
been concluded, the practice seems usually to be to inform the customer,
or prospective customer, by means of an automated message that the
conversation may be recorded and the purpose for which the recording is
being made. By continuing to participate in the conversation, the
prospective customer would in my view, have given implied consent to the
recording of the conversation. 
 
There are a myriad of other distinct legal issues such as data
protection, confidentiality etc that may be relevant in a particular
case and in respect of which civil or criminal liability could arise. 
 
Question 2
 
In my view, the answer is no, when data protection considerations do not
apply and yes when they do. Note however that data protection law is
immensely complex and I am certainly not expert in the field. Usually
the position is as under the 1993 Act. However, when data protection
legislation applies, as is the case in the course of business dealings,
the answer is yes. The Data Protection Act 1988 as amended ('the 1988
Act') means that data controllers must process personal data fairly.
They also have a general duty of care with regard to personal data. The
effect of the 1988 Act is that the called party should have the ability
to either give or withhold their consent to the recording of the
conversation. In practice, the withholding consent may of necessity
involve not continuing with the telephone call in question. In case
study 2/02 involving a bank (see http://www.dataprivacy.ie/02cs2.htm.)
the Data Protection Commissioner stated (in the context of the financial
services sector) as follows:-
 
'It clearly is important in Data Protection terms that an individual is
aware of and gives consent to such recordings.  I, of course, appreciate
that in the financial world it can be necessary when telephone
instructions are given that some record has to be available in case a
dispute arises... It was explained to the bank that, from a data
protection perspective, it had the capacity to identify the individual
by accessing the telephone recording system and using this in
conjunction with other data held by the company thereby bringing it
within the scope of the Data Protection Act...I consider that a
legitimate interest basis exists for the recording of calls in business
critical areas in the financial services sector, subject to the proviso
that callers should be clearly informed that recording is taking place
and the caller can then either go on with the call or not.'
 
The Data Protection Commissioner required the bank in the above case to
introduce an automated messaging system, limiting the recording of calls
to business critical areas, advising callers that phone calls are being
recorded and the purpose of the recording.
 
Question 3
 
In my view, the answer is in general, yes. Under Irish and English
contract law, an oral contract can be concluded using the medium of the
telephone. Note however that in Ireland with respect to certain
contracts, such as a contract for the sale of land, there must be a note
or memorandum thereof because of the provisions of the Statute of
Frauds, 1695. The same applies with respect to certain consumer credit
agreements. Where a written contract already exists, it is possible that
the parole evidence rule could be invoked in an attempt to prevent the
admission of a recorded telephone conversation as evidence in
litigation.
 
With respect to non-contractual situations, it is not possible to give a
general answer. In the case of the enforcement of a statutory duty or
obligation for example, a recording of a telephone conversation could in
principle be used in evidence. Separate legal factors could however
ultimately prevent its admission in to evidence.
 
Regards,
 
René
 
 
 
 
 
 
René Rosenstock
Solicitor
 
Commission for Communications Regulation
Abbey Court  
Irish Life Centre  
Lower Abbey Street  
Dublin 1  
Ireland
Telephone +353 1 804 9600  
Fax +353 1 804 9645  
Email [log in to unmask] <mailto:[log in to unmask]>  
 
Private, confidential and privileged lawyer client communication
 
                
The information in this email is confidential and may be legally
privileged. It is intended solely for the addressee. Access to this
email by anyone else is unauthorised. If you are not the intended
recipient, any disclosure, copying, distribution or any action taken or
omitted to be taken in reliance on it is prohibited and may be unlawful.
 

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