“This call may be recorded for quality purposes”. Legal or not?

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This call may be recorded for quality purposes.….Haven’t we all heard the voice on the other end of the line. I want to explore the legality of recorded telephone calls in the light of SA legislation.

Off the cuff, the first thing that comes to mind is constitutionality and secondly I can think of two pieces of legislation that might have an effect on telephone recording, namely the Protection of Personal Information (POPI) Act, 2013, and the Regulation of Interception of Communications and Communication Related Information Act, 70 of 2002 (RICA). Before I look at legislative frameworks, let me consider why telephone calls are being recorded.

Call recording is a standard for businesses with call-centres, although you find business in general use it as well. It’s sometime disclosed and sometimes it is not disclosed to the caller. My most vivid recollection of a recorded call was the one posted by Whackhead Simpson on YouTube.

I think the biggest reason would be for the protection of both parties in the event of a dispute. If we take the aforementioned YouTube video into consideration, we hear that the caller is outraged and threatening the company he called due to losses he suffered. So imagine the company found damage to its property the next day, the caller would have been a prime suspect in the matter, due to the threats he made. Whether the recording would have been admissible is another debate, however the point I’m trying to make is the recording can assist to resolve the issue. Another reason might be to protect the customer in his dealing with the business and maybe one can also argue that it is to improve customer service. Also from a government perspective it might be to protect national security or to detect criminal or terrorist activity. So there are obvious reasons why telephone calls are recorded and this is just some of the reasons I can think of.

Various countries address this differently through their respective laws. In the USA they even address it differently per State. Consent however seems to be a general or common thread. Some countries require prior consent, while others only requires that the telephone audibly “beep” at regular or specific intervals during the call.

Today you also get all sorts of cellphone apps that record calls, whether for business or personal purposes. In South Africa, I don’t think there are any provisions for personal recordings, however there are instances where a court might have to look deeper into this. For example, you phone your bank and record the call without them knowing. The person on the other bank is very rude and not assisting you. You report this, but are given a cold shoulder, where after you decide to post the audio recording on social networks. Now this can be a conundrum as the bank might see it as defamation.

In general, recording telephone calls doesn’t seem to be such a big deal. Some business people I know record important cellular conversations or meetings to playback at a later stage, just to ensure that they do not miss any important facts or information that was discussed. This appears not to be an issue or harmful, but is it lawful in South Africa?

Let’s consider the laws that might play a role.

If we start of with Chapter 2 of our Constitution, section 14(d) states that everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed. However, chapter 2, section 36, states that the rights in the Bill of Rights may be limited in terms of law. Such a limitation should be reasonable and justifiable in an open and democratic society and also based on human dignity, equality and freedom. I will therefore not debate the constitutionality of telephone call recordings.

The latest legislation on the subject matter is the POPI Act. The act defines ‘‘record’’ as any information recorded, produced, recorded or stored by means of any tape-recorder, computer equipment, whether hardware or software or both, or other device, and any material subsequently derived from information so produced, recorded or stored. Herein it is clear that a telephone recording may be regarded as part of personal information and therefore, to be legitimate, recording a telephone call must adhere to the provisions of the POPI Act.

A few years back the buzz was around the RICA. Section 4(1) of this act states that anyone who is part of a communication may intercept/record it, unless such a party wants to use it to commit an offence. Further to this, section 5 of the act states that a third-party may also intercept a communication if any one of the parties being recorded has given prior written consent. Finally section 6(1) of the act basically says that any person may, in the course of the carrying on of any business, intercept any indirect communication which relates to that business; or which otherwise takes place in the course of the carrying on of that business. This from the outset appears to contradict the POPI act as it does not prohibit anyone from recording telephone call, especially given that only one party to the communication needs to give consent. Obviously, if you are the party to a communication that you record yourself, consent is implied even if the other party is unaware of being recorded.

The latter brings me to entrapment and thus submission of evidence. From an evidence perspective, I also considered the Criminal Procedures Act, 51 of 1977 and therein are specific requirements for using recordings as evidence in litigation. Section 221(1)(a) of this act states that in criminal proceedings any statement contained in a document and tending to establish that fact shall be admissible as evidence if the document forms part of a record relating to the business and has been compiled in the course of that business. The word “document” also includes audio recordings, which therefore implies that telephone recordings may be used as evidence. Throwing a curve ball, I am still not sure what the view is if the notification says “Your call may be recorded for quality purposes“, and if in such a case a recording can be used as evidence for anything other than “quality purposes“? Parties therefore need to be cognisant of the legal requirements for recordings, otherwise you might not be allowed to submit it into evidence before a court of law.

Just considering this, it appears that there is no prohibition on recording telephone conversations if you are a party to the conversation. If you are not a party to the conversation, all you basically need is prior written consent from only one of the parties to the conversation. It also appears that this written consent is acceptable in electronic format. However, I would advise that to give someone a warning or notice that the call may or are being recorded might not be sufficient if you consider section 18(1) of the POPI Act. Furthermore the POPI Act also highlights the importance and requirements for storing and protecting information, which obviously would include audio recordings.

I conclude that it is not illegal to record telephonic conversations in terms of the aforementioned legislation. This leaves it open to abuse and I want to go out on a limb to say that we will still see it being abused. I would however still like to see our companies giving callers the option to have the call recorded or not. Just as a professional courtesy, “Press 1 to have this call recorded, Press 2 to not have this call recorded“. I think this should solve any possible problem concerning debates around the recording of telephone calls and the issue of consent.

Next time you call a number and get the “Your call is being recorded…” message, please be cognisant of your rights and the legislation that applies, so that you don’t find yourself in a predicament if there is ever a dispute..

Your comments are always appreciated and please highlight areas that I might have missed. Please don’t forget to share this article on your social networks and therein help to create a valuable public source of laws impacting on ICT.

Regards,

Nino

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