Metropolitan Police Commissioner Sir Ian Blair was recently revealed to have taped a telephone conversation with the Attorney General, Lord Goldsmith and has also admitted to recording several other calls with Senior Officials from the Independent Police Complaints Commission. The political fall out has been substantial, and the Met. Chief came under severe criticism from many quarters for his actions and has subsequently issued a formal apology. However, it may come as a surprise to some that Sir Ian did not actually break the law.
Under the Regulation of Investigatory Powers Act 2000 (RIPA) it is not illegal for individuals to tape conversations provided the recording is for their own use. The recording only becomes illegal when some or all of it is released to a third party. If an individual intends to make the conversation available they must first inform the person being recorded of their intentions and obtain their consent. Thus, in making personal aide memoirs of telephone conversations Sir Ian committed no wrong, nor was he obliged to notify the person being recorded of his actions.
In certain situations where there is a public interest at stake, it may actually be possible for an individual to record a conversation with the full intention of later releasing this to a third party without being obliged to inform the person being recorded. This can occur, for example, when investigative journalists (e.g. the BBC's Watchdog program) covertly record conversations with businesses suspected of carrying out illegal practices or giving bad advice and then release these conversations to the public at large as a warning. In these situations the public interest in 'outing' an unscrupulous business overrides the business' right to have the conversation kept private. RIPA also governs phone tapping which may be carried out legitimately by the police and security services with a warrant.
Where, then, in the light of recent publicity, does this leave a business which may wish to record some of its conversations with customers for entirely legitimate reasons such as staff training? Under the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 a business is permitted to legitimately record conversations for a variety of reasons which are examined in turn below:-
- Providing Evidence of a business transaction: This allows businesses to have a record of dealings and advice given to customers and other organizations. For example it is used by many banks and other financial institutions to verify previous conversations in ongoing disputes.
- Ensure that a business complies with regulatory procedures: This ensures that an organisation especially banks/financial institutions can be confident that its staff are adhering to the regulatory framework under which they operate.
- Ensure that quality targets are being met.
- For the protection of the interests of national security;
- To prevent or detect crime
- To investigate the unauthorised use of a phone network; and
- Secure the effective operation of a phone network.
The final two legitimate reasons for recording conversations would typically be used by telecommunications companies such as BT
It should be remembered, however, that no matter what the business' justification for recording the conversation may be, they must always inform the customer/employee of their intention to do so. This may simply be in the form of a recorded message. So long as this golden rule is adhered to, businesses need not be afraid of continuing to record telephone conversations for any of the legitimate purposes listed.
Businesses should always be aware, however, that RIPA does not only apply to telephone calls. The interception of, for example, email correspondence, is also covered and led to the recent conviction of Cliff Stanford (founder of Demon Internet & Redbus). Stanford had set up a 'mirroring' system which forwarded the emails of Redbus Chairman, John Porter to a hotmail account to which Stanford had access. The Court of Appeal upheld the guilty verdict in February of this year and Stanford and his co-accused were handed down a 6 month suspended sentence and £20,000 fine.
While Sir Ian Blair's actions have brought this issue to the fore, and the Stanford conviction may cause some uneasy shifting in boardrooms, businesses should not worry unduly about breaking the law in this area. Careful adherence to the Telecommunications Regulations and RIPA should be sufficient to avoid potential pitfalls in everyday business, while legal advice should be sought in advance of more complex or controversial actions.