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Legality of recording conversations with customers:
UK Law
How are recordings used, are
they used in court?
Is recording conversations legal? What is British telephone
recording law? It is surprising how seldom a recording
is used in court, we almost never hear of it. This is
partly because most recordings are used for sales training
or note taking. However when it is used for recording
agreements in most cases the recording helps to diffuse
the dispute, rather than to escalate it. The reason
for this is that most disputes escalate because one
party thinks that the other party is being difficult,
lying, or is not fulfilling what they committed to.
Suppose in your company you have a dispute with a customer
about what was agreed on the phone, and you listen back
to the recording. There are three possibilities. One
is that you can hear that the customer is absolutely
right, and so you give in with an easy heart. Another
possibility is that you are right and the customers
is clearly wrong. You then have a choice of playing
the recording to the customer and then normally the
customer will back down, or you may still give them
what they want, but at least you know that your systems
are correct, and the customer knows that you are being
generous. The third possibility is that you can hear
from the recording that no clear agreement was made;
the customer says "I will buy it for £100,
and your agent says "OK, £110 it is",
and the the customer says "that is good, here is
my credit card for £100", and the agent replies
"we will charge £110", and it is possible
to hear that the conversation was confused, and so it
is much easier to come to a satisfactory outcome.
We heard of a doctor's night service that used to receive
complaints from patients which took a great deal of
time to resolve. They started recording the calls that
they received. Then whenever they had a complaint, they
used to say to the patient "we are very sorry that
you are not happy, and as a reputable organisation that
cares about your health and how we look after you we
want to make sure that we do the right things, and do
what we say that we do; please come into the surgery,
we will listen to the call together and correct whatever
it is that we did not do as we said". When the
calls were listened together with the patient they could
both hear that in many cases the patient had the details
wrong, the times wrong, the name of the doctor wrong
- so much so that 80% of the complaints just evaporated.
Think of the similar savings in time and improvements
in customer service that could be made in your organisation.
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What is ethical?
At Retell we feel that there is a clear distinction
about what is ethical when recording calls as well as
is recording conversations legal.
In the normal business situation you record your own
calls for use in training, customer service or to resolve
issues with customers and in these cases you know what
was said because either you or one of your employees
was a party to the call in the first place. The call
will only be used within the company or perhaps with
the customer. It does not seem to us that there is any
ethical difference between having a telephone conversation
and telling a colleague about it or having a telephone
conversation and letting a colleague listen to a recording
of it. We believe that there is a parallel between receiving
a letter and telling a colleague about it, or letting
them read the letter. The only difference between the
colleague reading the letter or listening to the recording
or being told about them is that by reading or listening
to the original they know word for word what was said.
What is not ethical would be for someone else, for
example a competitor, to bug your offices or telephone
lines and so to learn your commercial secrets. Note
that in this case the competitor was not one of the
parties to the original telephone call, nor would they
notify you that the call was being recorded.
UK law rightly makes such third party interception
where neither party to the call knows that the call
is being recorded illegal except by the Police for law
enforcement, which is outside the scope of this page.
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Factors in the growth of
recording
Several factors have contributed to the growing practice
of recording or monitoring telephone conversations at
the work place in recent years. Within the financial
services sector it has become widely accepted even where
it is not strictly a regulatory requirement. The growth
of call centres has led to a significant expansion in
the amount of business done by telephone. The need to
ensure customer satisfaction, to train and supervise
call centre staff, to achieve quality targets, to have
a record of what was said in the event of a subsequent
dispute - all these have inevitably led to widespread
monitoring and recording of calls.
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The rules
Where organisations do feel it necessary to record
or monitor calls - for whatever reasons - the rules
under which they do so have been set by the Privacy
of Messages condition of the major two telecoms class
licences - the Self-Provision (SPL) and Telecommunication
Services (TSL) Licences. The most fundamental requirement
of this condition has been that every reasonable effort
is made to inform all parties to a telephone conversation
that it may or will be recorded.
Here is an extract of the relevant section of the SPL/TSL:
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The Privacy of Messages
condition of the Self-Provision Licence (SPL) and the
Telecommunication Services Licence (TSL)
(7.1) The Licensee shall not use or allow to be used
any Apparatus comprised in or connected to the Applicable
Systems (except for Apparatus connected to or comprised
in the Applicable Systems for the purpose of law enforcement
or in the interest of national security) which is capable
of recording, silently monitoring (except for monitoring
where the meaningful content of the Message is not monitored)
or intruding into Live Speech Telephone Calls, unless
he complies with paragraphs 7.3 and 7.4. This paragraph
shall not apply if the Licensee is an Emergency Organisation
or if the Director has consented to the Licensee not
complying with any or all of paragraphs 7.3 and 7.4
and has not withdrawn that consent.
(7.2) The provisions of each consent given under paragraph
7.1 shall be entered in the register kept by the Director
for the purpose of section 19 of the Act.
(7.3) The Licensee shall make every reasonable effort
to inform parties to whom or by whom a Live Speech Telephone
Call is transmitted before recording, silent monitoring
or intrusion into such Call has begun that the Live
Speech Telephone Call is to be or may be recorded, silently
monitored or intruded into.
(7.4) The Licensee shall maintain a record of the means
by which parties to whom or by whom a Live Speech Telephone
Call is transmitted have been informed that such Call
is to be or may be recorded, silently monitored or intruded
into. The Licensee shall furnish to the Director such
information on request.
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How does Ofcom explain what
the above rules mean?
The following is a verbatim extract from "Explanatory
Guide to the Self Provision Licence (SPL) and the Telecommunications
Services Licence (TSL)":
"18. The condition provides that you should make
every reasonable effort to inform all parties to a call
that it may or will be recorded, silently monitored
or intruded into. The particular means by which you
choose to do this are not specified in the condition.
Acceptable options, depending on circumstances, might
include warning tones, pre-recorded messages, spoken
warnings by the operator or written warnings included
in publicity material, telephone directories, contracts,
terms of business, staff notices, etc. It may not
always be possible to warn first-time callers with whom
you have had no previous contact but what is important
is that you have a systematic procedure in place which
provides the necessary information wherever this is
a realistic possibility."
At the beginning of the guide Ofcom say that they offer
"a helpful interpretation of the licences"
that has "no legal standing of its own" and
"While it is Ofcom's responsibility to enforce
licence conditions, their interpretation is ultimately
a matter for the courts." Nevertheless, as they
say themselves, Ofcom are the body responsible for enforcing
these conditions and from the italics that we have put
in you can see how flexible Ofcom are in this matter.
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How are companies
letting people know that calls are recorded?
Although the condition does not specify precisely
how the parties should be informed, most people will
now be aware of how many firms are conforming to the
requirement. Advertisements that invite calls to a given
number, whether the advert appears as a poster, on television
or radio or in the print media, frequently carry a message
to the effect that calls may be recorded or monitored
for quality. Warnings can also be given in literature,
terms and conditions, letterheards and on websites.
Really the recording of calls now is almost becoming
the norm as can be seen by the notifications in advertisements,
as companies address the issue, however much or little
recording that they do. At Retell we have never heard
of a company being thought badly of because they record
calls - why should they, they are just showing that
they want to be precise and accurate and to train their
staff well?
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How does Ofcom themselves
let their callers know that Ofcom may record them?
If you are concerned that your company should be giving
a voice announcement before each phone call is put through
to let callers know that the call may be recorded, you
may find it interesting that Ofcom themselves do not
give such a voice announcement that calls may be recorded.
They do however advertise it on their website as below:
"Please note that calls to the Contact Centre
may be monitored or recorded'
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Further information
What has been written above should be all you need
to know about recording in your company, but for further
background information including when you can record
without the parties consent (i.e when you have not notified
them in advance) see the page on this site where we
have posted the Lawful Business Practice Regulations
or see the BERR
website directly.
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