Telephone call recording laws
Telephone call recording laws are laws that govern the privacy of telephone communications, including the recording of conversations. Recording of private are usually covered by distinct laws.
Australia
The federal Telecommunications Act 1979 and State and Territory listening devices laws may both apply to monitoring or recording of telephone conversations. The general rule is that the call may not be recorded. Section 7 of the Telecommunications Act 1979 prohibits intercepting a telephone call. "Interception" is defined in section 6, of which one element is that it is made "without the knowledge of the person making the communication". There are exceptions to these rules in very limited circumstances, including where a warrant applies.If a call is to be recorded or monitored, an organization must tell the other party at the beginning of the conversation so that it has the chance either to end the call, or to ask to be transferred to another line where monitoring or recording does not take place.
Reasons organizations may monitor or record conversations may include:
- to protect a persons intent in dealings with the organization
- to provide a record in the event of a dispute about a transaction
- to improve customer service.
Canada
Organizations
In Canada, organizations subject to the Personal Information Protection and Electronic Documents Act must comply with PIPEDA when recording calls.In order to comply with the PIPEDA, organizations should take the following steps when recording conversations:
- The individual must be informed that the conversation is being recorded at the beginning of the call. This can be done by an automated recording or by the customer service representative.
- The individual must be advised of the purposes. The organization must be clear about the purposes; an organization should not state that it is recording the conversation for quality assurance purposes if, in fact, the recording will be used for other purposes. Informing the individual of the purposes can be done in a variety of ways—verbally, by pressing a number on the keypad or with clear messages on monthly statements. If the individual proceeds knowing the conversation is being recorded and the purpose of the recording, consent is implied.
- If the caller objects to the recording, the organization should provide the caller with meaningful alternatives. The alternatives might involve not taping the call; visiting a retail outlet; writing a letter; or, conducting the transaction over the Internet.
Individuals
However, it is illegal to record communications that the recording party is not participating in. An illegal recording can lead to a sentence of up to five years in prison. Section 183 of the Criminal Code also outlaws surreptitious recording of communications without consent of one of the intended recipients.
Denmark
Calls and conversations may be recorded by any active participant, with no requirement to make other parties aware of the recording. But forwarding or playing calls considered private is illegal.The Denmark Data Protection Authority ruled on April 11, 2019, that affirmative consent is required when companies record customer telephone calls.
Finland
In the case of private persons, calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws, such as data protection legislation, libel laws, laws governing trade and national secrets, and any agreements, such as non-disclosure agreements.Recording of calls by a company or an employer is subject to data protection legislation and, as a general rule, requires informing the participants prior to recording.
Germany
Germany is a two-party consent state—telephone recording without the consent of the two or, when applicable, more, parties is a criminal offence according to Sec. 201 of the German Criminal Code—violation of the confidentiality of the spoken word. Telephone tapping by authorities has to be approved by a judge. Telephone recording by a private citizen can be allowed in cases of self-defence, Sec. 32 of the German Criminal Code, or Necessity, Sec. 34 of the German Criminal Code.For discussion on lawful interception in Germany please see :de:Telekommunikationsüberwachung|de:Telekommunikationsüberwachung.
India
In India, telephone tapping has to be approved by a designated authority. It is illegal otherwise.The Central Government or State Government is empowered to order interception of messages per 12, section 5 of Indian Telegraph Act 1885. Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages. There is a provision for a review committee to supervise the order of interception.
Phone tapping is permitted based on Court order only and such permission is granted only if it is required to prevent a major offence involving national security or to gather intelligence on anti-national/terrorist activities.
Though economic offences/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual.
As per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls.
The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation.
Italy
According to the Supreme Court of Cassation, recorded conversations are legal and can be used as evidence in court, even if the other party is unaware of being recorded, provided that the recording party takes part of the conversation.Ireland
Recording calls is legal and recordings can be used as evidence in court, providing the person recording is a participant to the conversation, or has consent from at least one participant from the conversation.Latvia
Calls and conversations by private persons may be recorded by any active participant. There is no requirement in laws to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.New Zealand
Recording of phone calls by private persons falls under interception-related provisions of the Crimes Act 1961, which has a general prohibition on the use of interception devices. An exception is made for when the person intercepting the call is a party to the conversation. There is no requirement that both parties be aware of the interception.Poland
According to Polish Penal Code call recording is legal for private person only when recording person is one of the participant. No consent from the other side is needed then. Similar to Latvia the use of recordings, depending on their content, may be subject to various laws.Romania
Intercepting communications falls under the provisions of the Penal Code and, in the case of electronic communications, under the . The recording of a conversation by a private member to that conversation is specifically permitted. Nevertheless, while such recordings are legal, making use of them may fall subject to further civil or criminal law. Their admissibility as evidence also depends on the circumstances.Sweden
According to the Swedish Penal Code Chapter 4, 8–9 §§, it is illegal to make unauthorized recordings of telephone conversations. A court can grant permission for law enforcement agencies to tap telephone lines. Also, anyone participating in the telephone call may record the conversation — at least one party in the call must be aware of the recording being made. A recording is always admissible as evidence in a court, even if obtained in illegal matters.Turkey
There are strict conditions for both the act of surveillance as well as the storage of that data, but as long as it is clear enough of what exactly is being used for as well as implementation procedures were legal by authorities, it is deemed as alright. The subject at hand was suspected for not related criminal investigation therefore the telephone tapping was justified.United Kingdom
England and Wales
The Regulation of Investigatory Powers Act 2000 in general prohibits interception of communications by a third party, with exceptions related to government agencies. A recording made by one party to a phone call or e-mail without notifying the other is not prohibited provided that the recording is for their own use; recording without notification is prohibited where some of the contents of the communication—a phone conversation or an e-mail—are made available to a third party. Businesses may record with the knowledge of their employees, but without notifying the other party, to:- provide evidence of a business transaction
- ensure that a business complies with regulatory procedures
- see that quality standards or targets are being met
- protect national security
- prevent or detect crime
- investigate the unauthorised use of a telecommunications system
- secure the effective operation of the telecommunications system
This summary does not necessarily cover all possible cases. The main legislation which must be complied with is:
- Regulation of Investigatory Powers Act 2000
- Telecommunications Regulations 2000
- General Data Protection Regulation
- Telecommunications Regulations 1999
- Human Rights Act 1998
Recording is sometimes advised, as in recording business transactions carried out by telephone to provide a record. It is sometimes mandatory; from March 2009 Financial Services Authority rules required firms to record all telephone conversations and electronic communications relating to client orders and the conclusion of transactions in the equity, bond, and derivatives markets. In November 2011 this was extended to cover the recording of mobile phone conversations that related to client orders and transactions by regulated firms.
Scotland
The situation in Scotland is similar to that in England and Wales, cover by the Regulation of Investigatory Powers Act 2000.United States
In Rathbun v United States, the U.S. Supreme Court ruled in regard to interstate or foreign communication that "the clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him. The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. It has been conceded by those who believe the conduct here violates Section 605 that either party may record the conversation and publish it." See United States v. Polakoff, 113 F. 2d 888, 889.Federal law requires that at least one party taking part in the call must be notified of the recording ).
Call recording laws in some U.S. states require only one party to be aware of the recording, while other states generally require both parties to be aware. Several states require that all parties consent when one party wants to record a telephone conversation.
Telephone recordings are governed by federal law and by mainly two types of state laws:
Two-party consent states
States that generally require that all parties consent to the recording include:- California
- Connecticut
- Florida
- Hawaii*
- Illinois
- Maryland
- Massachusetts
- Montana
- New Hampshire
- Oregon*
- Pennsylvania
- Washington.
One-party consent states
- Alabama
- Alaska
- Arizona
- Arkansas
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Georgia
- Hawaii
- Idaho
- Illinois*
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Maine
- Michigan*
- Minnesota
- Mississippi
- Missouri
- Nebraska
- Nevada
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon*
- Rhode Island
- South Carolina
- Tennessee
- Texas
- Utah
- Vermont
- Virginia
- West Virginia
- Wisconsin
- Wyoming
The California Supreme Court ruled in 2006 that if a caller in a one-party state records a conversation with someone in California, that one-party state caller is subject to the stricter of the laws and must have consent from all callers. However, non-disclosure recordings by one of the parties can legally be made if the other party is threatening kidnapping, extortion, bribery, human trafficking, or other felony violence. Also included in the exception is misdemeanor obscenity and threats of injury to persons or property via an electronic communication device if directed in whole or in part towards a conversation participant or family members.
Following the Illinois Supreme Court's decision in People v. Clark/Melongo on March 20, 2014, which struck down Illinois' two-party consent law, Illinois was a one-party consent state. However, the state legislature amended the statute and, as of December 30, 2014, Illinois is once again a two-party consent state, although the revised law establishes a one-party consent rule for private electronic communications.
The Michigan Court of Appeals ruled in 1982 that participants in a conversation may record a discussion without getting the permission of other participants. The ruling stated that eavesdropping only applies to: "a third party not otherwise involved in the conversation being eavesdropped on". This is because the law uses the wording, "the private discourse of others", rather than the wording, "the private discourse of others or with others. Michigan law is often misinterpreted as requiring the consent of all parties to a conversation.
Accepted forms of notification recording by a telephone company
The Federal Communications Commission defines accepted forms of notification for telephone recording by telephone companies as:- Prior verbal or written notification of all parties to the telephone conversation.
- Verbal notification before the recording is made. This is the most commonly used type.
- An audible beep tone repeated at regular intervals during the call.