Phone call recording

smilgy

What are the legal requirements for a citizen to record a phone call in Ireland? For example, do I have to inform the third party that the call is being recorded or is there no such need ?

miller50841

Just say when pick up that this call is been recorded they prob wont say much then

Ken.

http://www.dataprotection.ie/viewdoc.asp?DocID=640

Voice recordings are personal data under the Data Protection Acts. The recording of such calls – whether of customers or employees – needs to be made known to the individuals concerned. The specific purpose for which the recordings are made also needs to be made clear. For instance, an indication that calls are being recorded for training purposes means that the calls can only be used for that purpose and cannot be used for any other purpose such as dispute resolution.


We would recommend that a written policy be in place in relation to call recording so that it can be made available to the public if requested (a data retention policy in relation to how long copies are retained should be included in such a document). Even where an organisation has a comprehensive and general policy of recording all (external) phone calls, it is advisable that it examines the potential to offer callers an option not to have the call recorded. This follows the data protection principle of proportionality, specifically the requirement that data are relevant and not excessive.


An individual has a right to get a copy of any such recording made of her/his call. The copy could be provided in audio or transcript format.

ima_goldfish!

Now this may seem like an idiotic question but Ill ask anyway,do phone networks record phone conversations the same way they keep a record of text messages?Also if somebody was accused of making threatening phonecalls or even silent ones hypothetically and the gaurds got the records but not recordings what are the consequences likely to be? Or lets say they did somehow get recordings can these be used in court? I would think not due to date protection etc?

MagicSean

Data Protection Act has exceptions for criminal investigations. It doesn't really apply in the case of nuisance phone calls and harassment. You'd want to be looking at the law of evidence.

seamus

You do not have to inform the other person if you are recording a private phone conversation between two individuals (i.e. not a call to or from a company), but you would not be permitted to replay that recording to anyone else.

In legal evidence terms, a recording is usually not admissable as evidence in court unless both parties were aware that it was being recorded.

ima_goldfish!

You do not have to inform the other person if you are recording a private phone conversation between two individuals (i.e. not a call to or from a company), but you would not be permitted to replay that recording to anyone else.

In legal evidence terms, a recording is usually not admissable as evidence in court unless both parties were aware that it was being recorded.

thanks seamus thats what I was thinking aswell. I mean it seems like a sort of set up, if you are recording somebody without their knowledge.
I dont really understand though why the Data Protection wouldnt apply in the instance of thoughof nuisance phone calls and harassment though?

Incidentally though,if a person was accussed of nuisance phone calls and harassment,what would the actual charge be? What if it was a first time offence really and the people involved had a history, what punishment is likely?

MagicSean

ima_goldfish! wrote: »

thanks seamus thats what I was thinking aswell. I mean it seems like a sort of set up, if you are recording somebody without their knowledge.
I dont really understand though why the Data Protection wouldnt apply in the instance of thoughof nuisance phone calls and harassment though?

Incidentally though,if a person was accussed of nuisance phone calls and harassment,what would the actual charge be? What if it was a first time offence really and the people involved had a history, what punishment is likely?

Because it would not be in the interest of justice to allow someone to commit a crime and avoid prosecution by using the data protection act. The Act is to protect peoples privacy. Text messages and voicemails would likely be useable as evidence.

The charges can range from nuisance through harassment up to threats to kill depending on the content and frequency.

gizmo555

ken wrote: »

http://www.dataprotection.ie/viewdoc.asp?DocID=640

Voice recordings are personal data under the Data Protection Acts. The recording of such calls – whether of customers or employees – needs to be made known to the individuals concerned.

MagicSean wrote: »

Data Protection Act has exceptions for criminal investigations. It doesn't really apply in the case of nuisance phone calls and harassment. You'd want to be looking at the law of evidence.

It also exempts personal data being processed for domestic purposes. The OP's post asked about a "citizen" recording a call, not an organization.

seamus

ima_goldfish! wrote: »

Now this may seem like an idiotic question but Ill ask anyway,do phone networks record phone conversations the same way they keep a record of text messages?

Actually meant to address this;
Phone companies do not record customer conversations and they don't keep any record or backup of text messages that were sent.

They do keep a log of the fact that calls were made/texts were sent by noting the numbers of the two parties, the date/time and the duration. This is permitted under the DPA to allow companies to accurately bill their customers. They are required to hold onto this information for a minimum of six months and a maximum of a year. Though that second figure may be wrong.

They don't have a record of the content of texts or calls. They would be in massive trouble if they did.

gizmo555

seamus wrote: »

Actually meant to address this;
Phone companies do not record customer conversations and they don't keep any record or backup of text messages that were sent.

They do keep a log of the fact that calls were made/texts were sent by noting the numbers of the two parties, the date/time and the duration. This is permitted under the DPA to allow companies to accurately bill their customers. They are required to hold onto this information for a minimum of six months and a maximum of a year. Though that second figure may be wrong.

The Communications (Retention of Data) Act 2011 requires phone companies to retain such data for two years. Data about internet communications must be held by ISPs for one year.

ima_goldfish!

Because it would not be in the interest of justice to allow someone to commit a crime and avoid prosecution by using the data protection act. The Act is to protect peoples privacy.

But wouldnt the person accused sort of have a right to protection and privacy under data protection too? I mean innocent until proven guilty and all that?
I mean if your accussed of something, its not definite that you did it if you get me?
If somebody was recieveing nuisance phone calls and claimed there were threats involved or something along those lines how would they prove that to be true? Wouldnt that be word against word? Like rape cases usually end up word against word and then cant make it to court,wouldnt this end up as something similar?

seamus

gizmo555 wrote: »

The Communications (Retention of Data) Act 2011 requires phone companies to retain such data for two years. Data about internet communications must be held by ISPs for one year.

Cheers, I knew it had been changed recently, but I couldn't remember.

If somebody was recieveing nuisance phone calls and claimed there were threats involved or something along those lines how would they prove that to be true? Wouldnt that be word against word?

Yes, but nuisance calls are a little easier to prove because you have a record of dates and times.
The victim will say that the accused had no reason to contact them, and presented with a long list of evidence of calls having been made, how does the accused prove that all of those calls were made for valid reasons?

In the search for evidence, the Gardai would be permitted to access the accused's phone records in order to ascertain what they were doing at the time, when such data would otherwise be covered by the DPA.

ima_goldfish!

seamus wrote: »

gizmo555 wrote: »

The Communications (Retention of Data) Act 2011 requires phone companies to retain such data for two years. Data about internet communications must be held by ISPs for one year.

Cheers, I knew it had been changed recently, but I couldn't remember.

If somebody was recieveing nuisance phone calls and claimed there were threats involved or something along those lines how would they prove that to be true? Wouldnt that be word against word?

Yes, but nuisance calls are a little easier to prove because you have a record of dates and times.
The victim will say that the accused had no reason to contact them, and presented with a long list of evidence of calls having been made, how does the accused prove that all of those calls were made for valid reasons?

In the search for evidence, the Gardai would be permitted to access the accused's phone records in order to ascertain what they were doing at the time, when such data would otherwise be covered by the DPA.

So the gards will go through the accused phone records aswell,but are they only allowed to seach for records to do with the person who complained? Surely they wouldnt have the right to nose through texts u sent to a girlfriend etc? Or if they did and found an admittance would they be allowed to use that as evidence?
Also so they see that a call has been made from your phone at 3am to a certain number,how can they prove this to be harrassing? How do they kno your phone didnt go off in your pocket or something? I mean as offences go surely this is a more minor one

MagicSean

ima_goldfish! wrote: »

So the gards will go through the accused phone records aswell,but are they only allowed to seach for records to do with the person who complained? Surely they wouldnt have the right to nose through texts u sent to a girlfriend etc? Or if they did and found an admittance would they be allowed to use that as evidence?
Also so they see that a call has been made from your phone at 3am to a certain number,how can they prove this to be harrassing? How do they kno your phone didnt go off in your pocket or something? I mean as offences go surely this is a more minor one

No it's not. Constant calls and texts, even with no content in them can be extremely disruptive and distressing to a person. In addition, they are usually only a precursor to more serious actions and an indication of a dangerous situation. Thankfully the losers who perpetrate these offences are often punished harshly by the courts, at least the cases I've seen anyway.

As to the examination of the phone records and phone of the accused. All items will likely be examined as there is no way of knowing if they are linked to the case otherwise. Only the relevant ones would be useable as evidence though.

I don't know about your other query. If, while examining the phone, they find any evidence about something else I'm not sure if that could be used. I have a feeling it couldn't be. That doesn't mean that it wouldn't be followed up though.

ima_goldfish!

so they are allowed to go through the entire contents of the phone? I think thats unfair and an invasion not only of the person accused privacy but all the people they have been in contact with.
Well lets say while the phone calls had happened over a period of a month or so but there has been none for the past 6 or 7 months would that make a difference? Also if there is a history involved whereby the person recieving the phone calls is not just your average nice guy? And the courts are aware of the complaints made against him?

often punished harshly by the courts

punishments such as.....? Even if the person accused has no previous confictions and thought he was protecting someone close to him?
People are getting murdered I mean ive recieved nuisance phone calls in the past and rather than antagonise the person i just didnt answer. And they went away, people are getting murdered by bad people in this country probably everyday yet there is such a huge deal made out of a few phone calls. It doesnt make sense,esp when the person recieving the supposed phone call is one of these bad people

ima_goldfish!

Thank you for the replies btw

MagicSean

ima_goldfish! wrote: »

so they are allowed to go through the entire contents of the phone? I think thats unfair and an invasion not only of the person accused privacy but all the people they have been in contact with.

Well they can't tell which items are related until they read them. Of course this all depends on individual circumstances.

ima_goldfish! wrote: »

Well lets say while the phone calls had happened over a period of a month or so but there has been none for the past 6 or 7 months would that make a difference?

Not really.

ima_goldfish! wrote: »

Also if there is a history involved whereby the person recieving the phone calls is not just your average nice guy? And the courts are aware of the complaints made against him?

The victim is not the one who would be on trial. Not nice people are also entitled to the protections of the law.

ima_goldfish! wrote: »

punishments such as.....? Even if the person accused has no previous confictions and thought he was protecting someone close to him?

The last one I saw got 2 years. Although he had previous for a similar offence. A prison stint is a very real possibility following a conviction for harassment.

ima_goldfish! wrote: »

People are getting murdered I mean ive recieved nuisance phone calls in the past and rather than antagonise the person i just didnt answer. And they went away, people are getting murdered by bad people in this country probably everyday yet there is such a huge deal made out of a few phone calls. It doesnt make sense,esp when the person recieving the supposed phone call is one of these bad people

So you are in favour of selective law enforcement based on the character of the victim?

ima_goldfish!

[QUOTEWell they can't tell which items are related until they read them.

Well you would imagine that the item of the gards concern would be any calls/texts made to the actual "victim". Because isnt that the only thing that can be used as evidence?

Not nice people are also entitled to the protections of the law

But where is the person accused's protection? Considering their whole life can be went through by gards.
Well this person is a genuine criminal and the person who is accused of " harrasing" him is not. I understand the guards cant know that but it seems a ridiculous state of affaits that a criminal can press charges against someone who is not a criminal and who just made a mistake. Silent phone calls are easily solved all you have to do is stop answering or change your number you dont keep answering and talking tryin to antagonise someone to get themselves in more trouble.

So you are in favour of selective law enforcement based on the character of the victim?

Not in every case, if a nice guy loses his temper and shoots somebody who is involved in gangs or something well then obviously he deserves to be punished. The supposed calls have had zero effect on the complainent and plenty off effect on everybody else involved ie. the person accused and their loved ones. So in this instance I do think the character etc should play a part in the decision of the punishment.

ResearchWill

ima_goldfish! wrote: »

[QUOTEWell they can't tell which items are related until they read them.

Well you would imagine that the item of the gards concern would be any calls/texts made to the actual "victim". Because isnt that the only thing that can be used as evidence?
But where is the person accused's protection? Considering their whole life can be went through by gards.
Well this person is a genuine criminal and the person who is accused of " harrasing" him is not. I understand the guards cant know that but it seems a ridiculous state of affaits that a criminal can press charges against someone who is not a criminal and who just made a mistake. Silent phone calls are easily solved all you have to do is stop answering or change your number you dont keep answering and talking tryin to antagonise someone to get themselves in more trouble.
Not in every case, if a nice guy loses his temper and shoots somebody who is involved in gangs or something well then obviously he deserves to be punished. The supposed calls have had zero effect on the complainent and plenty off effect on everybody else involved ie. the person accused and their loved ones. So in this instance I do think the character etc should play a part in the decision of the punishment.

Are you saying that a convicted criminal does not have the protection of society. If a person makes a mistake then that would be their Defence. If on the other had they have decided to harass a citizen, a convicted criminal or not then they are a criminal as long as all the following is done,

"
Harassment.

10.—(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.

(2) For the purposes of this section a person harasses another where—

(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and

(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.

(3) Where a person is guilty of an offence under subsection (1), the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.

(4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence.

(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do.

(6) A person guilty of an offence under this section shall be liable—

(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both."

The usual is that AGS approach the person and require they stop. If they don't stop then they will be arrested, their phones, phone records and if necessary Internet will be gone through as will computers. Do a google search for "encase software". The evidence will be collected and a criminal trial will then take place in either District Court or Circuit Court. If convicted usuall suspended sentence but POA or prison sentence possible. To any person at the receiving end of this behavior it is not a minor issue and is not looked on kindly by the courts.

ResearchWill

ima_goldfish! wrote: »

But wouldnt the person accused sort of have a right to protection and privacy under data protection too? I mean innocent until proven guilty and all that?
I mean if your accussed of something, its not definite that you did it if you get me?
If somebody was recieveing nuisance phone calls and claimed there were threats involved or something along those lines how would they prove that to be true? Wouldnt that be word against word? Like rape cases usually end up word against word and then cant make it to court,wouldnt this end up as something similar?

In relation to the investigation of crime an accused rights are trampled all the time, arrest and detention for investigation. Search of the persons house, property and person, the taking of DNA samples, I could go on and on. If you had a total right to privacy then it would be nearly impossible to solve any crime.

The majority of rape cases or sexual assault cases are exactly that the victims word against the accused, it's not all CSI.

In section 10 harassment calls it is often just the evidence of the victim saying xy and z was said on the phone and then evidence from the network that such a call was made at the relevant time from the accused phone, if the judge or jury accept the victims evidence then the accused is convicted, if they don't then acquitted.

ima_goldfish!

Are you saying that a convicted criminal does not have the protection of society.

no im not saying that I just mean a few phone calls wont have much of an effect on someone who is a criminal. I just think that there is more the victim could have done before going to the cops. I think there would have been ways to resolve it without dragging all the families etc to court for a few phone calls.
If this person had been effected I would think differently but he hasnt. You understand why im saying its not particularly fair because the victim of harrassment has suffered less then the apparent " criminal" so that is my point of in this case people characters should play a part.

or reasonable excuse

what would constitute a reasonable excuse do you think? What if the person accused of calling was going thru a tough time mentally at the times the calls were made and is now seeing a counseller would you think that would be likely to make a difference?
You mentioned going through the accused computer and house etc? Is that likely to happen?? This all seems so extreme to me,the person accused thought they were protecting and helping a loved one and now there is a chance they could go through all this? I understand the action they are accused of is wrong but the intention would have been to defend and protect someone. Sad to see a bad guy use the guards as a weapon against good people