The recording of telephone calls is proving ever more useful to law firms – if only as a means of ensuring that they have clear record of what clients have said. However, making these recordings is not without complications – both technical and regulatory – and any law firm thinking of doing so must bear in mind the problems and potential pitfalls of doing so.
The continuing prevalence of email and other forms of electronic communication does not mask the fact that, for majority of law firms, the telephone remains a key method of communication. Not only is it often quicker and simpler to speak with someone, it also provides a degree of certainty as to whether the message has or has not been received. However, the downside of a phone call is that normally there is no physical record of what was said unless a note of the call is made. For this reason, many firms have started to make contemporaneous recordings of telephone conversations.
There are of course other benefits to be derived from recording phone calls, including:
- new business – making sure business opportunities are not lost as a result of calls being taken by staff not trained in converting enquiries into business;
- quality assurance – supervisors making sure clients have been given the correct advice in an appropriate manner;
- protecting staff from complaints – clients unhappy with the firm may claim that they have not been advised correctly over the phone;
- enhanced productivity – having a call recorded means those answering the call can spend more time concentrating on the call and less time making notes;
- accurate time recording – keeping detailed phone records can help firms to ascertain precisely how much time is being spent on client matters.
Whilst it is legal, in many situations, to record a telephone call, there are a number of regulatory and legislative requirements that must be observed when doing so. The provisions that deal with the interception, recording and monitoring of telephone calls in the UK are mainly to be found in:
- Data Protection Act 2018;
- UK General Data Protection Regulation 2018 (UK GDPR);
- Regulation of Investigatory Powers Act 2000;
- Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000;
- Telecommunications (Data Protection and Privacy) Regulations 1999; and
- Human Rights Act 1998.
For example, under the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, calls can generally be recorded provided it is to:
- provide evidence of a business transaction;
- ensure that regulatory procedures are complied with;
- ensure that quality standards or targets are met in the interests of national security;
- prevent or detect criminal activity;
- secure the effective operation of the telecom system; or
- allow a business to detect unauthorised activity.
However, even when it is legal to record phone calls, there are nevertheless regulatory requirements that apply to those recordings. The most far reaching of these are to be found in the UK GDPR. This applies because the recording itself will normally result in personal data, and sometimes what the UK GDPR refers to as ‘special category’ personal data, being obtained, stored and processed. Thus, for example, if information is recorded about an identifiable individual who has given their home address, then that is personal data and thus comes within the ambit of the UK GDPR. It is worth noting that the data does not even need to be accessed or used in any way for UK GDPR to apply. It is sufficient if a firm is simply storing it electronically.
Those firms wanting to record telephone conversations must, therefore, ensure that they do so in strict compliance with the provisions of Article 5 of the GDPR – for example making sure that the data is processed lawfully, fairly and transparently, acquired and then used only for specific purposes and kept for no longer than is absolutely necessary. They must also ensure that there is a valid basis for making the recording – for example that the caller has consented, or it is recorded as part of the performance of a contract or that the firm has a legitimate interest in carrying out the processing. Moreover, firms should not underestimate the problems that can arise in relying upon consent as the basis, bearing in mind that consent must not be “negative” and based on the client simply not opting-out of the call.
Duties are also placed upon those making the call recordings as to the handling of those recordings and making sure that they are kept confidential and only accessed by those with a valid reason for doing so. Firms may, therefore, need to consider encrypting the recordings so as to keep them secure and having access to them controlled by a data manager. There are also duties upon those making the recordings to ensure that callers are made aware in some way of their rights under the UK GDPR – for example to know what is being recorded and the purposes for which it will be. used.
Firms will also need to make a decision as to which calls are to be recorded. Will it be all calls, in which case how does it address the issue of staff using the firm’s phone system for private conversations, or will it be only some calls, in which case how does it decide which to record and how the parties are advised of this? Those firms that have dealings with people in other jurisdictions will need to ensure that they comply with any call recording requirements that those other jurisdictions have if they are not to fall foul of local laws.
At the very least, any firm planning to record calls should make sure that they have a fully thought through policy as to what will be recorded, how the other parties to the call are to be notified and given the option not to have their call recorded and how the recordings are to be kept secure. This will involve some form of privacy statement on their website, additions to the terms and conditions and client care letter and possibly a comprehensive policy setting out the various factors that is communicated to all staff concerned.
Infolegal has produced a comprehensive factsheet on handling the recording of calls which includes a draft of a statement for the firm’s website which is available for Infolegal members to access and download. There is also a call recording policy that they can incorporate into their office manuals. If you would like more information about this, or you are interested in membership of Infolegal, please contact us at firstname.lastname@example.org.