Recording a call

vectorvictor · 14-02-2019 8:38pm #1

I am aware of the charter on legal advice moreso seeking direction or opinions

I reported an event to a company in early January by phone

They state their calls are recorded when you call them

A GDPR request resulted in them saying they only record some calls and mine wasn't one of them

They are denying I reported the event

I have my own copy of the call through Android ACR

I haven't told them this

Am I allowed to have recorded this call and if I disclose it to them as proof will I get in trouble ? Is there implied consent considering they stated they were recording the call (which is captured on my recording) ?

My capacity is consumer there's is as a company

Samuel T. Cogley · 14-02-2019 8:42pm

Single party consent recordings are generally fine. You're not going to get a fine or anything like that. Whether it's usable as proof for anything is a different story.

There's literally a thread a week on this, so if you do a search you'll get more info.

peterofthebr · 02-08-2020 8:50am

my phone automatically records calls. its useful when someone is giving me instructions etc as i dont need to write it down and thats all i would use it for. but what if i ring a customer support like eir, sky, vodafone or esb etc where im trying to get them to fix or resolve an issue. they often say recording calls for training purposes ..why cant i so the same? if i have a internet issue and ring them and it says calls may be recorded for training and i dont give them permission to record.. can i say i dont give them permission and not to record my call

Captain_Crash · 02-08-2020 9:04am

I work in this exact area and this is a common question. With regards to the provision of calls to customers, there is no requirement to provide any, nor is there a requirement to confirm if a call has been recorded. Much like you said, our customer service team just say calls “may” be recorded.

With regards to recording it without permission, this isn’t an issue with regards to legality. However, if let’s say it went to court, then it will be difficult to include it as evidence as you didn’t get consent from the other party. When a company says “calls may be recorded etc” that’s them getting consent from you for them to record the call but is not inferred as permission to record it yourself.

I have seen cases where a claimant has withdrawn a claim as it was based on a call they had recorded without notifying us. Equally, I’ve heard customer recorded calls where we did mess up and we’d look to resolve the matter if that’s the case.

So to summerise, if they made an error then the call will be handy to have to try and get them to fix it.... however if they get stubborn and let it go to court, then the call is likely of no use to you

Edit: Aaaaaaand I’ve just noticed this is a year old thread haha

hullaballoo · 02-08-2020 10:51am

No harm in posting in a year old thread on this forum. It's not accepted elsewhere but I've long wondered why. Seems a mad rule.

Anyway, I would like to know the rule of evidence that excludes calls that are recorded without one or more party's knowledge. As far as I know, it's only unlawful if the State does it. Would presumably be excluded from eg a criminal trial on the basis of illegality/unconstitutionality although the JC case makes even that a coin toss.

Captain_Crash · 02-08-2020 6:11pm

hullaballoo wrote: »

Anyway, I would like to know the rule of evidence that excludes calls that are recorded without one or more party's knowledge.

This isn’t my area, so I couldn’t tell you to be honest, gotta ask the guys who earn the big bucks. I handle pre- litigation, basically my job is to prevent court action if possible. We’ve always worked in a way that if the other party has a call to not worry about it should we need to proceed with a hearing (99% of my case load would be in the UK and not Ireland)

02-08-2020 6:20pm

vectorvictor wrote: »

I am aware of the charter on legal advice moreso seeking direction or opinions

I reported an event to a company in early January by phone

They state their calls are recorded when you call them

A GDPR request resulted in them saying they only record some calls and mine wasn't one of them

They are denying I reported the event

I have my own copy of the call through Android ACR

I haven't told them this

Am I allowed to have recorded this call and if I disclose it to them as proof will I get in trouble ? Is there implied consent considering they stated they were recording the call (which is captured on my recording) ?

My capacity is consumer there's is as a company

Whic app exactly are you using? I looked up android acr expecting a specific app to display? but actually got acrobat reader, and then checked for call recording apps, I used to have an app that diverted messages to a gmail account, but I just stopped using it when the app became unreliable and didnt start again, sick of, especially dealing with companies as a consumer and even in private calls of people saying they did such and such or denying they said so and so, when I know exactly what has transpired (I dont know why but I noticed it seems to happen a lot with people and organisations copping out and making excuses).
Im planning to just start recording calls for confirmation, is the app you use good and can you point me in its direction specifically.

80j2lc5y7u6qs9 · 02-08-2020 8:48pm

Captain_Crash wrote: »

I work in this exact area and this is a common question. With regards to the provision of calls to customers, there is no requirement to provide any, nor is there a requirement to confirm if a call has been recorded. Much like you said, our customer service team just say calls “may” be recorded.

With regards to recording it without permission, this isn’t an issue with regards to legality. However, if let’s say it went to court, then it will be difficult to include it as evidence as you didn’t get consent from the other party. When a company says “calls may be recorded etc” that’s them getting consent from you for them to record the call but is not inferred as permission to record it yourself.

I have seen cases where a claimant has withdrawn a claim as it was based on a call they had recorded without notifying us. Equally, I’ve heard customer recorded calls where we did mess up and we’d look to resolve the matter if that’s the case.

So to summerise, if they made an error then the call will be handy to have to try and get them to fix it.... however if they get stubborn and let it go to court, then the call is likely of no use to you

Edit: Aaaaaaand I’ve just noticed this is a year old thread haha

I have seen Data Protection uphold a complaint because the call was recorded without the person being made aware. "The call is being recorded" part did not play before the all was answered. It was pre GDPR

Recordings are data and the caller is entitled to a copy. Also the OP would be entitled to ask if any data existed about him and if it did to a copy

https://www.hipaajournal.com/gdpr-rules-for-recording-calls/
Right to Access Personal Data

Data subjects have the right to access their personal data (GDPR Article 15), which extends to recordings of telephone calls. If a request is received from a data subject to access their personal data, it is necessary to comply with that request within 30 days. A company must therefore have the ability to be able to search for call recordings and provide copies as necessary.

GavMan · 05-08-2020 11:53am

Captain_Crash wrote: »

I work in this exact area and this is a common question. With regards to the provision of calls to customers, there is no requirement to provide any, nor is there a requirement to confirm if a call has been recorded. Much like you said, our customer service team just say calls “may” be recorded.

With regards to recording it without permission, this isn’t an issue with regards to legality. However, if let’s say it went to court, then it will be difficult to include it as evidence as you didn’t get consent from the other party. When a company says “calls may be recorded etc” that’s them getting consent from you for them to record the call but is not inferred as permission to record it yourself.

I have seen cases where a claimant has withdrawn a claim as it was based on a call they had recorded without notifying us. Equally, I’ve heard customer recorded calls where we did mess up and we’d look to resolve the matter if that’s the case.

So to summerise, if they made an error then the call will be handy to have to try and get them to fix it.... however if they get stubborn and let it go to court, then the call is likely of no use to you

Edit: Aaaaaaand I’ve just noticed this is a year old thread haha

I had assumed One Person or Single Party consent was legal in Ireland

https://www.mhc.ie/latest/insights/big-brother-is-watching-but-is-he-listening-too

Assuming that to be correct and it's legal to record it without the 3rd party consenting, why wouldn't it be admissible? Genuine question, I haven't a fig

Captain_Crash · 05-08-2020 12:03pm

GavMan wrote: »

I had assumed One Person or Single Party consent was legal in Ireland

https://www.mhc.ie/latest/insights/big-brother-is-watching-but-is-he-listening-too

Assuming that to be correct and it's legal to record it without the 3rd party consenting, why wouldn't it be admissible? Genuine question, I haven't a fig

Literally just came on to post. I asked out of curiosity this morning. There is no specific laws per se, it all boils down to data processing agreements. We have a privacy policy, and can tell you exactly where your data is stored, what encryption is used and what parties it may be given to etc, and any of our customers would have agreed to this policy.

If a customer records a call, they would become a data controller, as once the voice of the person they are speaking to is heard, it becomes potentially identifiable information of which they are in possession of. As they don't have any policy in place as to how they store the details and what the retention period is (nor have we agreed to one with them), the storage may be a violation of GDPR and thus, it cannot be retained.

What a judges opinion is on this is anyones guess, but for now we don't want to find out.

tjhook · 05-08-2020 12:14pm

Captain_Crash wrote: »

However, if let’s say it went to court, then it will be difficult to include it as evidence as you didn’t get consent from the other party. When a company says “calls may be recorded etc” that’s them getting consent from you for them to record the call but is not inferred as permission to record it yourself.

I don't have a legal background. But surely the common phrasing "this call may be recorded for quality and training purposes" allows us to record the call on the basis that we want to ensure the quality of service we're receiving? The wording allows it, and I believe it's a legal principle that lack of clarity in a contract is interpreted to benefit the party that *didn't* draft it.

To later say "oh, we meant that to apply to only us, not to you" hardly seems enforceable.

ectoraige · 05-08-2020 12:22pm

Captain_Crash wrote: »

If a customer records a call, they would become a data controller, as once the voice of the person they are speaking to is heard, it becomes potentially identifiable information of which they are in possession of. As they don't have any policy in place as to how they store the details and what the retention period is (nor have we agreed to one with them), the storage may be a violation of GDPR and thus, it cannot be retained.

What a judges opinion is on this is anyones guess, but for now we don't want to find out.

Would GDPR apply to non-business customers if they are just service users? They wouldn't be regarded as collecting the data for business purposes would they?

tayto lover · 05-08-2020 12:35pm

After the recorded introduction saying that they are recording the call what would the legal situation be if you said you were also recording it?
Could you then use it as evidence in court?

AndrewJRenko · 05-08-2020 12:40pm

Captain_Crash wrote: »

I work in this exact area and this is a common question. With regards to the provision of calls to customers, there is no requirement to provide any, nor is there a requirement to confirm if a call has been recorded. Much like you said, our customer service team just say calls “may” be recorded.

With regards to recording it without permission, this isn’t an issue with regards to legality. However, if let’s say it went to court, then it will be difficult to include it as evidence as you didn’t get consent from the other party. When a company says “calls may be recorded etc” that’s them getting consent from you for them to record the call but is not inferred as permission to record it yourself.

Not inferred by who? Is there any legal precedent on this?

If a business says "calls may recorded", it is pretty difficult to roll back on this?

Captain_Crash · 05-08-2020 5:01pm

ectoraige wrote: »

Would GDPR apply to non-business customers if they are just service users? They wouldn't be regarded as collecting the data for business purposes would they?

This is a very good question, that could bring you down a rabbit hole if you really went into it. If they are collecting data, then they surely have a reason. If an individual has a reason then must they specify that reason in the same way a business would? I don't actually know. My view is probably not.

After the recorded introduction saying that they are recording the call what would the legal situation be if you said you were also recording it?

In my firm, our customer support agents just advise that they do not have permission to record the call, the caller will normally say "ok I've stopped" and the call will just continue. (99 times out of 100 the caller didnt stop recording, if they even were in the first place)

Not inferred by who? Is there any legal precedent on this?

I stated that as a matter of fact so excuse me if I caused any confusion. We would infer that when we advise a call "may be recorded" its that it might be recorded by us, but doesn't give permission to the other party. The term "may" isn't meat to read "you may record this call" its meant to read as "we might possibly record the call"

tjhook · 05-08-2020 5:11pm

Captain_Crash wrote: »

We would infer that when we advise a call "may be recorded" its that it might be recorded by us, but doesn't give permission to the other party. The term "may" isn't meat to read "you may record this call" its meant to read as "we might possibly record the call"

But if we're talking about legal matters, then the wording is important. The term "this call may be recorded" isn't the same as "Megacorp inc. may record this call". The passive voice applies equally to the company, the customer, and even potentially a third party (e.g. an agent of the company). If the company wants to restrict this, it's up to them to word it correctly.

80j2lc5y7u6qs9 · 05-08-2020 11:14pm

GavMan wrote: »

I had assumed One Person or Single Party consent was legal in Ireland

https://www.mhc.ie/latest/insights/big-brother-is-watching-but-is-he-listening-too

Assuming that to be correct and it's legal to record it without the 3rd party consenting, why wouldn't it be admissible? Genuine question, I haven't a fig

i cannot think of any where you can opt out. When they come on the line after the recording the don't give this option in myexperience

Claw Hammer · 06-08-2020 12:42pm

hullaballoo wrote: »

Anyway, I would like to know the rule of evidence that excludes calls that are recorded without one or more party's knowledge. .

The call is hearsay to start with. To be accepted in evidence it must be proven by the person who made the recording. To get it admitted in evidence the person who made the recording should write down everything in the call and then give oral evidence and say they used the recording as backup and that it is exactly as they recall the conversation.

Peregrinus · 07-08-2020 2:33am

Diego Inexpensive Cord wrote: »

i cannot think of any where you can opt out. When they come on the line after the recording the don't give this option in myexperience

Well, you can opt out by hanging up when you hear the message telling you that the call will be recorded. Or you can wait until a human being comes on the line, ask if the recording can be terminated (don't wait for them to offer; raise the matter yourself) and, if the answer is "no", terminate the conversation.

Bottom line; you cannot be compelled to participate in a recorded conversation with them if you are not willing to. But, by the same token, they cannot be compelled to participate in an unrecorded conversation with you if they are not willing to.

maestroamado · 07-08-2020 8:12am

vectorvictor wrote: »

I am aware of the charter on legal advice moreso seeking direction or opinions

I reported an event to a company in early January by phone

They state their calls are recorded when you call them

A GDPR request resulted in them saying they only record some calls and mine wasn't one of them

They are denying I reported the event

I have my own copy of the call through Android ACR

I haven't told them this

Am I allowed to have recorded this call and if I disclose it to them as proof will I get in trouble ? Is there implied consent considering they stated they were recording the call (which is captured on my recording) ?

My capacity is consumer there's is as a company

Do you mind if i ask where you are submitting complaint?

80j2lc5y7u6qs9 · 07-08-2020 8:48pm

Peregrinus wrote: »

Well, you can opt out by hanging up when you hear the message telling you that the call will be recorded. Or you can wait until a human being comes on the line, ask if the recording can be terminated (don't wait for them to offer; raise the matter yourself) and, if the answer is "no", terminate the conversation.

Bottom line; you cannot be compelled to participate in a recorded conversation with them if you are not willing to. But, by the same token, they cannot be compelled to participate in an unrecorded conversation with you if they are not willing to.

it's not practical to opt out if you need the service though. Years ago a friend was wrongly billed and was able to have the company confirm they told him, wrongly, they would cover it by their listening back

Peregrinus · 10-08-2020 2:26am

Diego Inexpensive Cord wrote: »

it's not practical to opt out if you need the service though.

That depends on what the service is, obviously. Most services that you ring up to obtain can also be obtained by writing a letter. Takes a bit longer, not so convenient, but it works.

Diego Inexpensive Cord wrote: »

Years ago a friend was wrongly billed and was able to have the company confirm they told him, wrongly, they would cover it by their listening back

If I'm understanding you correctly, that would be a reason why you wouldn't want to opt out. Nevertheless if, despite this consideration, if you do want to opt out, you can.

80j2lc5y7u6qs9 · 10-08-2020 1:45pm

Peregrinus wrote: »

That depends on what the service is, obviously. Most services that you ring up to obtain can also be obtained by writing a letter. Takes a bit longer, not so convenient, but it works.

If I'm understanding you correctly, that would be a reason why you wouldn't want to opt out. Nevertheless if, despite this consideration, if you do want to opt out, you can.

Really what I meant is you cannot opt out and continue with the call, yopu cannot say to the person answering i don't want to be recorded.In the case i know of it was a medical service which the Data Protection Comm upheld a complaint about.The call was recorded but the 'this call is being recorded' did not play..

If I'm understanding you correctly, that would be a reason why you wouldn't want to opt out

It came in very handy as the company were able to confirm it was their error and, in fairness, were upfront about it

Peregrinus · 10-08-2020 2:21pm

Diego Inexpensive Cord wrote: »

Really what I meant is you cannot opt out and continue with the call, yopu cannot say to the person answering i don't want to be recorded . . .

I don't understand. What is it that stops you from saying that, as soon as a human comes on the line?

80j2lc5y7u6qs9 · 10-08-2020 4:08pm

Peregrinus wrote: »

I don't understand. What is it that stops you from saying that, as soon as a human comes on the line?

you can say it but they say all calls are recorded and we cannot change that, in my experience

Peregrinus · 11-08-2020 1:53am

Diego Inexpensive Cord wrote: »

you can say it but they say all calls are recorded and we cannot change that, in my experience

Then you hang up, and write a letter or email instead.

Like I say, you can't be compelled to participate in a recorded phone call if you don't want to.

But the flip side of this is that you can't compel them to participate in an unrecorded phone call, if they don't want to.

Mellor · 11-08-2020 2:16am

tjhook wrote: »

But if we're talking about legal matters, then the wording is important. The term "this call may be recorded" isn't the same as "Megacorp inc. may record this call". The passive voice applies equally to the company, the customer, and even potentially a third party (e.g. an agent of the company). If the company wants to restrict this, it's up to them to word it correctly.

If they just said "calls may be recorded" you might have a point.
But I've never heard it described in such basic or loose terms. It's usually followed by "...for training and quality purposes". Which would exclude any offer of permission to the customer as they are not involved in training staff.

The company legally obliged to let you know about the recording as you have to consent to the record.

Diego Inexpensive Cord wrote: »

it's not practical to opt out if you need the service though. Years ago a friend was wrongly billed and was able to have the company confirm they told him, wrongly, they would cover it by their listening back

In that case he benefited. But there is nothing to say he couldn't have opted out and lost the benefit.

Diego Inexpensive Cord wrote: »

Really what I meant is you cannot opt out and continue with the call, yopu cannot say to the person answering i don't want to be recordedt

Diego Inexpensive Cord wrote: »

you can say it but they say all calls are recorded and we cannot change that, in my experience

That is incorrect.
Many companies give the option to not be recorded.
If some choice not to for their own protection, that's their right tbh. In which case you have the right to hang up.

80j2lc5y7u6qs9 · 11-08-2020 8:17am

Mellor wrote: »

If they just said "calls may be recorded" you might have a point.
But I've never heard it described in such basic or loose terms. It's usually followed by "...for training and quality purposes". Which would exclude any offer of permission to the customer as they are not involved in training staff.

The company legally obliged to let you know about the recording as you have to consent to the record.

In that case he benefited. But there is nothing to say he couldn't have opted out and lost the benefit.

That is incorrect.
Many companies give the option to not be recorded.
If some choice not to for their own protection, that's their right tbh. In which case you have the right to hang up.

It is not incorrect. I said in my experience.

Mellor · 11-08-2020 9:48am

Diego Inexpensive Cord wrote: »

It is not incorrect. I said in my experience.

I quoted two posts. The first is not "in your experience". It says you cannot opt out. That's a definitive statement. It is incorrect as in many case you can opt to not be recorded.

tjhook · 11-08-2020 11:15am

Mellor wrote: »

If they just said "calls may be recorded" you might have a point.
But I've never heard it described in such basic or loose terms. It's usually followed by "...for training and quality purposes". Which would exclude any offer of permission to the customer as they are not involved in training staff.

What if I want to record the call to ensure the quality of service I receive?

The wording allows it. If they want to disallow it, they would need to rephrase their conditions.

Mellor · 11-08-2020 1:44pm

tjhook wrote: »

What if I want to record the call to ensure the quality of service I receive?

The wording allows it. If they want to disallow it, they would need to rephrase their conditions.

How does your recording the call help with training of staff?
Monitoring the the service you receive is outside the specific meaning of the phrasing imo.

There are reasons justify your call imo. But if your case hinges on the phasing used, I think it falls short.

Recording a call

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