In this day and age you can buy recording devices from high street shops to a standard that even MI5 would be proud of.
It is surprisingly easy. However, recording conversations without the participant’s knowledge is essentially considered a breach of that person’s right to privacy. When the evidence that is recorded is central to proving a fact in a dispute, however, how does the law balance the protection of the individual rights against ensuring justice is carried out?
How can companies, employers and individuals make recordings legitimate? What if the evidence is key to a litigation case, but they didn’t tell their customer?
Person to Person
Between two private individuals it is not prohibited to record conversations. The problem arises however if that conversation is then provided to a third party for whatever reason, without the consent of both parties. Consent can be obtained retrospectively or argued to be within the public’s interest. As an example, reporters frequently record conversations covertly, but their defence is that the content is in the public’s interest and should be disclosed; in that knowledge of the recording would alter the content of the conversation significantly. A thin line is trodden here and many court battles have ensued to determine what is and what is not considered in the public’s interest. Injunctions are the most effective option available to the recorded individual who believes recordings have been made without consent, along with any claims for damages flowing from it.
Companies however, have very different rights to record. They may wish to record telephone conversations for business purposes, such as for training or security reasons, but it can only do so for regulated purposes as discussed below. The Telecommunications Act 1984 still regulates this area, but delegates the finer points to OFTEL and the Department for Business, Innovation and Skills. Upon purchasing a telephone system for your business the licence granted to use the system is bound by the guidance issued by these two bodies.
The Regulation of Investigatory Powers Act 2000 (RIPA) permits a company to lawfully record conversations only to:
- Establish facts;
- Ensure regulatory compliance; or
- demonstrate standards that are achieved or need to be achieved by training.
Any recording retained must be relevant to that business and only used for that business. Also all reasonable efforts must be made to inform the parties that the conversation is or was recorded. We recommend noting this on your terms and conditions, website and other documents; have a recorded message when customers call you advising them that calls maybe recorded. Do whatever is reasonable to advise the party so as not to fall foul of these regulations. Also, if you are storing personal information the Company must be registered with the Data Protection Commissioner.
An employer should also be particularly wary of employees recording disciplinary or grievance hearings without their knowledge. The Employment Tribunal has previously in certain circumstances permitted these recordings, such as where the Employer is a public body. Employers should take preventative measures by amending Employment Contracts to explicitly exclude employees from recording hearings and ensure the decision making body retains its confidential notes of the discussions, but which are not disclosed unless matters proceed to a hearing. An Employment Tribunal would not want to hinder open discussion by the decision maker for fear of being recorded, but it has happened.
Producing evidence in court
Can these recordings be used in court to prove critical facts about a claim or defence even though they may have been obtained without consent or in line with the rules?
A tricky question. Again, on fundamental principles of law the claimant should not come to court with ‘dirty hands’ and judges commonly believe a cheat should never prosper. The RIPA also prohibits the product of unlawful interceptions to be admissible in court. However, in civil cases some judges take a pragmatic approach that if the information is already disclosed and it is highly relevant, then it will be admitted – but then you are stuck with it for better or worse. So where it is relevant and helpful it can be admitted and used to prove your case, but once the party is aware of its existence it must be disclosed and this may raise other issues all together. There is also risk that although you may obtain judgement in your favour, the unlawful means of obtaining this evidence, could be reflected in the remedy you receive for example perhaps less damages.
Be warned that if the data has been obtained illegally or unfairly then a party can address this by alternative means outside of the proceedings. It can issue a claim for breach of the Data Protection Act or under the above legislation claim damages for any losses suffered as a result of the recording. The Employment Appeals Tribunal has also indicated that it would exercise its Part 32 powers to override statute and admit evidence if a fair trial was at stake – so even if precautions were taken by employers to prevent recordings, for issues such as discrimination claims it may still be permitted?
There is no clear answer in this area of law, but the basic principles of obtaining consent for recordings is one that everyone should follow the guidance and if you haven’t and want to rely on it, yes you probably can, but be aware of the risks involved.
For more information contact us…
0207 426 0382