Monday, 16 October 2017

Recording

Audio recording of conversations is a tricky business, and call recording is one aspect. The rules and advice and laws have changed. Some aspects are simple telecommunications and "interception" laws, and some can fall in to data protection where the identity of a living individual is apparent from the recording. Even with data protection laws, caveats like "public interest" and "preventing or detecting crime" come in to play. So it is not simple.

We, as a communications provider, sell telephony services where call recording is a standard feature. If you have a number from us even if connected with a mobile SIM, or VoIP phone, we can record calls and email them to you as a standard feature at no extra cost. It is really very useful.

Personally, I record all calls. As a business (A&A) we record all calls. Indeed, for business it is so common it is to be expected and you don't even have to say that calls are recorded (we think).

There are issues with "why" the calls are recorded and "who" gets to access those recordings.

Now, as a service we offer, it is important that our customers understand the rules on the recordings of calls they make or receive.

So later in the year (or next year), in light of GDPR, we need to work it all out. The plan it to make some proper legal advice on call recordings, when and how. I'll be blogging on the matter, and A&A will have advice for customers as much as we can.

At the end of the day, the fact a call was recorded usually only comes up when someone wants to deny what they said, or agreed. Once you get to that the fact you recorded the call is not the issue, it is the fact someone lied, or broke a contract, that matters. They cannot get out of that by saying they did not know the call was recorded. That is saying "If I knew it was recorded I would have told the truth" which is not going to wash with any judge, I suspect.

So watch this space on that...

But there is something weird that happened today. A public body wants a meeting, but their "policy" is (a) you cannot bring a solicitor, and (b) you cannot record the meeting. The second point is odd, well both points are odd, but especially as they say they will be recording the meeting and will send a copy of the recording...

Policy!

They say this is "policy"! Policy is a lovely term and we see it all the time. We have encountered BT policy as a company. We counter such things saying "A&A policy is X". When anyone spouts "policy" they are dictating something as an immutable rule when not considering that the other party may legitimately have their own conflicting "policy" on such matters.

It is my policy to record all meetings... This is one reason it is not me going tomorrow.

Let's record...

So we have pondered some legal points - if all participants of the meeting know it is recorded and know that we will get a copy of the recording, is there any legal impediment to us covertly recording the meeting? I think not... I am not a lawyer, but it is an interesting legal point. Comments?

You also have to wonder why, though? I can think of two reasons. The main one is for them to be able to edit the recording before providing a copy. That is not, in any way, a stated intention, and would be unethical I feel. The other is to hold copyright on the recording - but one could make your own transcript using the recording to ensure accuracy and hold your own copyright on the transcript - so not a useful right to retain. Either way, something wrong with not allowing both parties to make a recording. Neither party making a recording may be a valid thing in some cases, but hard to see why a public body would want such an "off the record" meeting, and they have not said they do. It just makes no sense to refuse us making a recording when they will and provide us with a copy!

So, what do to... We will have two see...

I find myself in one of those situations where I would love to say more - to say which public body, and what is at stake. As you may imagine, doing so at this stage could be a problem legally. But it is an interesting legal point, and I know several legal minds read my blog - so comment away...

What is the law on recording a meeting?

P.S. Thanks for all the interesting comments. Meeting went well enough and no sign of a coverup, which was a surprise. Not something we can say more on at this stage. Solicitors next. Sounds like the no-recording is just bullshit policy crap (incompetence rather than malice).

29 comments:

  1. "They cannot get out of that by saying they did not know the call was recorded. That is saying "If I knew it was recorded I would have told the truth" which is not going to wash with any judge, I suspect."

    My understanding is that if the call was recorded without the explicit knowledge or permission of the other party then it won't even get played to the judge, so that is how the other party will wriggle out of it.

    But I understand that a private individual can record and use all calls with impunity. I can and I do. It put the knockers on my car insurer today when they refused to do any more to speed up the repair. Told them I was recording the call and suddenly s**t hit fan and they got it sorted. Amazing that.

    I love recorded calls.

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    1. Well quite. As for a judge, you can use the recording to make a transcript, and say that you used a recording so as to give the transcript more credibility than simply from memory, as far as I know. It is perhaps something we should look in to when we do the blog.

      I also found saying that the call is recorded, or on a later call "I'll check the call recording" does rather make people jump, and you can say that even when it is not recorded :-)

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  2. "We may record your calls..."

    Don't know why companies say this because obviously you record them to protect both the customer, ensure quality standards, and protect staff against false accusations of wrongdoing. Don't pretend you might not be recording with such wishy-washy language.

    "It's policy" is such an excellent way of defending something while minimising any responsibility. Why can't you do this? Because it's company policy. I'm very tempted to start using it myself. "Well it's my policy to..."

    Speaking of policies, BT drive me mad with their unwillingness to provide engineer details when dealing with secure customer environments. No you can't just randomly turn up at the DC with your BT badge and expect to get in. Given how many DC visits the likes of BT make, how can they not realise this, and implement and effective policy.

    On a tangent, beyond obstinate company policies, I've had some customers get annoyed when we can't provide them with information for legal reasons, in other words they're not on the list of authorised parties. Sorry, we don't make those data protection laws, and sorry for actually caring about protecting our customers.

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    1. I also like "calls may be recorded" as that clearly can be "read" as saying that you can record the call :-)

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    2. Oo hadn't looked at it that way before

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    3. Companies say "We may record your calls..." rather than "We will" or "We do" so that when they listen to the recording and find it incriminates them and supports the customer they can deny that the recording exists. After all we may record the call. But we might not. And in the case of the call recording that we would prefer did not exist "We didn't happen to record that one".

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    4. Having worked in call centres, I can tell you that many are still very antiquated. Full electronic call recording isn't everywhere, and in the last call centre I worked in, each agent might have 1-2 calls a week recorded. Customers would often refuse to believe us that we didn't have a call recording of every call....

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  3. Would that include no CCTV? Surely you could match CCTV footage (providing it's a good framerate) with the audio recording to look for editing trickery?

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  4. Legally speaking, unless *you* are a public body then you're absolutely fine to record a meeting covertly.

    If you're a public body and wish to covertly record a meeting you'd require RIPA authorisation.

    If you're a public body and wish to consensually record a meeting, that's fine.

    As a member of the public, or even a private organisation for that matter, you're within your rights to covertly record the meeting. The only immediate exception that springs to mind is if the meeting were, for example, in a courthouse and that's because statute specifically prohibits the taking of photographs, making of recordings etc.

    My advice would be: go for it.

    Incidentally, denying you the right to legal advice may mean the authority are in breach of your convention rights. Without knowing more detail I can't advise you further but it's something you might like to inquire about the 'policy' during the (clandestinely recorded) meeting as the evidence thereof may assist you at a later date.

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    1. Interesting. I can't yet go in to details, but thanks.

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  5. The government (DWP) places some extreme rules on recording assessments - if you are claiming PIP (Personal Independence Payment (which replaces Disability Living Allowance)), then the rules that they apply are there to basically ensure that you can not record the assessment!

    "A claimant does have the right to ask for a PIP interview to be formally taped and used as evidence, but unlike other disability benefits like ESA, they have to provide their own equipment.
    This must be a secure, tamper-proof double recorder which can cost as much as £1,500. A mobile phone, digital recorder or dictaphone does not meet the requirements."

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  6. does A&A have any blackboxes or are you being consulted about them?

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    1. LOL, No, this is entirely a personal matter.

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  7. I'm not a solicitor nor am I otherwise legally "qualified". That said, I like legal things and data protection things.

    The only major statute law I can think of that would apply in this case, is the Data Protection Act 1998. As you presumably wouldn't be recording for personal purposes but rather for business purposes, you wouldn't qualify for the general exemption that grants.

    However, all is not lost. You're only obliged to abide by the Data Protection Act where personal data is at stake. Personal data refers to data that could uniquely identify an individual given the other information you hold or can access. So, presumably you could identify the person you're speaking to in a meeting, as you'd have that in your calendar somewhere.

    That therefore still fails, but there is yet hope. The Data Protection Act only applies to situations where there is a reasonable expectation of privacy (eg you have a reasonable expectation of privacy such that only authorised people can view your criminal record or credit history). In my view, in a meeting which is already being recorded by one party, this is similar to a phone call to a company call-centre that's also being recorded - there's no reasonable expectation of privacy.

    I would therefore say that on that basis, as the person with whom you're holding the meeting can't expect privacy because everything is already being recorded and that recording is to be shared with you, it wouldn't be an issue to record the meeting. That said, I do remember reading some case law recently that suggested that, in the case of for example financial regulators, they were exempt from certain disclosures and requirements because an individual member of staff could be identified.

    I would always still think it a good idea to notify the other side that you are recording, even were there are. However, if the worst comes to the worst then you could simply say that you have a transcript of the meeting and, perhaps, this may conflict with their transcript. You can prove that your transcript is correct using a recording, or at the very least you can shed doubt on their recording/transcript if it differs from yours.

    In any case, I wouldn't be willing to go to a meeting where solicitors and recording aren't allowed, nor would I let anyone do so on my behalf. If it's so terribly important, they can conduct a meeting under reasonable conditions. After all, this isn't a meeting between two private companies where it might be reasonable to impose such conditions with mutual consent, this is a meeting with a public authority. They can't get away with silliness like this.

    Anyway, just some views.

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    1. > The Data Protection Act only applies to situations where there is a reasonable expectation of privacy

      I would be cautious applying this approach: the Act applies where there is the processing of personal data, even if the data were made public by the data subject.

      You might be able to find an exemption — e.g. s36, domestic purposes — or else find that you are compliant (as long as you are registered with the ICO :)), but I can't see a situation where the Act would simply not apply.

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    2. "In my view, in a meeting which is already being recorded by one party, this is similar to a phone call to a company call-centre that's also being recorded - there's no reasonable expectation of privacy."
      On conversations with call centres I always advise the voice who tells me that calls may be recorded that I shall also record the call. She may be a recorded message but he/she doesn't identify themselves as such. I've used this against one very odious company before and to paraphrase Private Jones, they don't like it up 'em.

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  8. To be honest, taking the two restrictions together makes it sound like they don't want any legal scrutiny, by preventing you from having either a solicitor, or a recording to give to one later on. That's just... unsettling.

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    1. A good word for it. It is a very stressful matter and this just adds to the stress. Thanks all for the comments.

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  9. Personally I would record it anyway if you were even the slightest bit worried. Presumably the contents of the recording only become important if some legal proceedings were to follow and I can imagine the judge would be more concerned that the public body has altered or modified a recording to possibly alter the truth or the tone of a conversation, than with you making a recording against policy

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  10. Some thoughts:

    As we are talking about recording a meeting and not an interference with an electronic communication, the issues of interception, and the ePrivacy framework, fall away.

    There is no specific law prohibiting the recording of meetings by an individual who is party to a meeting. (So we leave aside covert recordings, or recordings by public authorities.)

    The recording will amount to the processing of personal data, so the data protection framework kicks in. However, in the context here, the person doing the recording is to ensure that they have an accurate record of the meeting, for their own, solely domestic, purposes. IMHO, this case falls squarely within the "domestic purposes" exemption, so there is no requirement to notify or to have a lawful basis, and so on.

    It is not clear from the facts, but it seems that the other party might be hosting the meeting. If this is the case, there's potentially an arguable that they can choose who they admit onto their premises, and under what conditions. Someone who entered in breach of those conditions could well be a trespasser. Generally, trespass is a civil law matter, but there are some interesting specific powers. For example, there is an offence of "causing nuisance or disturbance on NHS premises", which can criminalise otherwise-tortious conduct.

    Noting that the other party is a "public body", it might be interesting to explore whether the body's action in refusing a recording was lawful. I wonder if an argument might be made, for example, that, by prohibiting an attendee from recording, the public body was an unjustified interference with fundamental rights. For example, might the prohibition interfere with the right to respect for private and family life? Alternatively, if they knew it was being recorded and refused to proceed, would the refusal to proceed be lawful?

    If the result of the meeting was such that legal action was contemplated, I do not know how a court would treat the issue of a covert recording. Is it admissible as evidence? Does it show bad faith? Or would, in the case of an individual versus a public body, a court recognise the imbalance in the relationship? (I'm not a litigator; I have no idea.)

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    1. Interesting you bring up trespass, iirc in the UK it only becomes trespass for commercial premises once they ask you to leave and you choose to stay. By them letting you into the building (even if you know they shouldn't be there, a lawyer in this case) they have given consent for you to be there so wouldn't be trespass. They would have to specifically ask you to leave. At that point you are correct that depending on the public body/premises then it changes how the rest progresses.

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  11. Suggestion: record the exact start and finish time of the meeting. If their recording is tampered with in any way it will be to edit out certain parts which would make the duration of the recording not match the duration of the meeting.

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    1. as well as recording this information, state the date/time (to the second) of the start and end in the meeting. Again this would show up any edits

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  12. It should be possible to make a call to someone who then records the call, then leave the call connected for the duration of the meeting. You're not recording the meeting and the other person isn't party to the restriction.

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  13. In my common sense view the "no solicitors" rule is patently absurd, for the simple reason that you yourself could be a practising lawyer and they could hardly exclude you from your own meeting. You might even be able to get yourself a suitable degree from a non-accredited online institution for this exact purpose :-)

    If you feel that having a legally qualified person in the room would be useful then take one along, and introduce them (hopefully truthfully) as your friend (or what the hell, say they're your lover, valet, chauffeur, dominatrix, parole officer, whatever).

    And if you want to ask your friend their personal opinion on how the meeting is going, as proceedings progress, you should do so.

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  14. One third possible reason is: the recording may be reviewed before they send you a copy, and they may refuse to send it (or mysteriously lose the recording) if they feel anything they said was incorrect or liable to make trouble for them further down the road.

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  15. As others have said, any company I call that announces that "they may record this call" I also try to tell them that I am recording.

    Sometimes I forget and during the call I'll say that as they are recording it so am I - that usually makes them more receptive.

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    1. Usually the places I call don't say "we may record this call"; they say "this call may be recorded". Which is clearly consent for me to do so.

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    2. I was being generic about my comment on what companies said - apologies if that wasn't clear :)

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