Many organizations use some form of call recording. If yours is one of them then it’s important to be sure that you’re complying with the law on call recording. Prompted by a recent enquiry from one of our customers, here is a quick health-check review of the most common legal issues relating to call recording. Of course, this is no substitute for advice relating to your specific circumstances, which we are always happy to provide, nor is it a substitute for expert legal advice from a specialist legal practitioner . I can, however, give you an overview of the key things you need to consider when using any form of call recording in your contact center.
Obligations to your staff
You have obligations to your staff. This includes your employees and can also include those taking calls on your behalf at outsourced call-centers as well as home-workers, even though they may technically be self-employed agents. Wise practice is to treat anyone who is speaking on your behalf as staff.
You have an obligation to make staff aware that a call is being recorded. You can simply advise staff that ‘all calls may be recorded’, but this really doesn’t help your staff know how the recording may be used, for example whether the call may be relied upon to verify their conversation with your customer, and it can also prove unsatisfactory in employment disputes. So wise practice for the avoidance of doubt is either to record all calls or to provide your staff with on-phone or on-screen indication that a call is being recorded. If you use specific recordings in connection with determining a disciplinary matter or to inform a pay-review, bonus-award, promotion-assessment or the like, then you should identify which recordings were so used, and offer to provide the staff member concerned with a copy of the recording should they wish it.
Your employees must also be provided with a means of making un-recorded personal calls from within the workplace. This could be by means of a payphone, or by verifying that all employees have a personal mobile phone they can use. Note that it is illegal to ban personal calls whilst at work. These must be permitted during meal and break times, which employers have a statutory obligation to provide.
Obligations to callers
So next, let’s look at the other party to the call, be it a customer, enquirer, tax inspector or whomever. Different issues arise depending whether the call is one that is made from your organization (outbound) or to your organization (inbound). All callers must be told if their call is to be recorded, unless the recording is solely for exempt purposes, which are:
- To provide evidence of a business transaction
- To ensure that a business complies with regulatory procedures
- To see that quality standards or targets are being met in the interests of national security
- To prevent or detect crime to investigate the unauthorised use of a telecom system
- To secure the effective operation of the telecom system.
For inbound calls, written warnings of call recording are only acceptable if the number cannot be obtained from any source which doesn’t include the recording warning. This can work if you are using campaign-specific non-geographic numbers for leaflets and posters and these numbers are not available elsewhere. However if a number is listed on your website or directory enquiries, it will soon be available from lots of third-party organizations who acquire numbers using robots – and these listings won’t include your warning. So the wise policy is to play a recording warning prior to connecting the call. Such a warning can easily be inserted into your inbound IVR system.
Be careful about management lines and DDIs though. A common error is to record all inbound calls, but fail to play a warning on those calls which are directed to a particular admin or personal extension. A network-level warning may be the only solution here, unless you chose to limit your use of those recordings to the exempt purposes. We recommend that for all warnings you use a phrase such as ‘All calls to Blogs Ltd, and from Blogs Ltd, may be recorded for monitoring, staff training and transaction verification purposes.’
Compliant call recording of outbound calls
Recording outbound calls in a compliant manner is more challenging. Maybe you only use recordings of outbound calls for exempt purposes. But most organizations want to use their outbound recordings for training and monitoring as well, so the called party needs to receive a warning. If you know for certain that the called party has previously heard a warning (within a reasonable timeframe) that calls from your organization may be recorded then you have complied with your obligations. Otherwise, your staff must issue a recording warning as soon as they have identified that the answering party is the person to whom they wish to speak. Remember this applies to management as well as call-center lines, if you are recording those calls for anything other than the exempt purposes.
Storage and retrieval of recordings
Once you’ve got your legal recordings, you still have to take care of their storage and retrieval. They must only be made available for the exempt and stated purposes, and must only be heard by those persons with a need to listen. Unless you are a very large organization ready to write the necessary systems in-house, your call recording system should provide the backup and archival storage services as well as an access service with an audit trail showing who listened to what and when. Call recordings should never be directly accessible or copyable in bulk. If a recording finds its way onto a laptop, USB stick, DVD or out onto the web then you may find you have committed a criminal offence, quite apart from the huge reputational damage likely to result.
Financial considerations of call recording
Lastly, whilst not strictly legal issues, we’d remind you of two financial considerations affecting call recording. If you take credit card details during a recorded call, you will need to consider PCI DSS compliance, which requires something more than simple call recording. We have a paper on this issue here. And if you operate in a sector where recording of calls is mandatory then you need to make arrangements to record calls to and from your staff’s mobile phones as well as their desk phones. If you don’t know how to arrange that, or would like to discuss any aspect of the issues raised, then do please contact us and we will be happy to help.