Recording Conversations without Consent

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Do you want to record a conversation without someone’s consent? Do you wonder whether it’s lawful to do so? While different jurisdictions will give you different answers, you might be surprised to find out that – in many cases – recording without consent is legal. This includes recording conversations over the phone or even someone speaking in a room full of people, without their consent to do so.

There many problems when it comes to recording a conversation without consent, particularly with sensitive content. The more sensitive the content is, the less likely it is that all participants would allow the recording of the conversation. Some people would only say certain things in a specific moment, and to specific people. This kind of recording can be harmful, like when Springbok rugby player Luke Watson was recorded making statements about the Springbok jersey and the “Dutchmen” who run the game.

Why engage in recording conversations?

There are many benefits to recording conversations, including:

  • improving customer service and satisfaction
  • protecting your customers from fraud
  • keeping records in the event of a disputes or misunderstandings
  • improving staff performance quality
  • recording and recalling exact content and wording, to help perform tasks more effectively or to help with similar interactions in the future

But is it lawful to do so without the consent of the other party involved in the conversation? Or both parties (such as an employer recording conversations between their employees and customers, without either party’s consent).

How we can help

  • Find out whether you can record conversations legally in your jurisdiction by asking us for our legal opinion.
  • Lawfully recording your employees, by asking us how to perform legal monitoring in the workplace.
  • Protect your employees or customers’ information, by getting our help with various data protection solutions.
  • Inform your customers that you are recording conversations with them, by asking us to draft your customer privacy policy.

Interested?

If you are interested, please complete the form on the right or enquire now. We will contact you to find out more about your requirements and give you a quote.

How the law handles recording without consent

South Africa

Recording without consent is unlawful, unless you fall under the exceptions listed in the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA). These exceptions include where you are a party to the communication, you have the written consent of one of the parties to the communication, or the recording is in connection with the carrying on of business (in which case more specific requirements apply). You are a “party to the communication” if you are the sender, the recipient, or any person included in the communication (such as being copied in on an email).

You do not need someone’s consent when recording conversations if you are a party to the conversation

The United States of America

Different states have different ways of dealing with recording conversations. Many states allow “one party consent”, meaning that it is lawful to record a conversation even if only one person in the conversation consents to it (even if this person is the recording party). Other states require “two-party consent”, meaning that all parties to the conversation need to consent to the recording.

Australia

Generally, no party may record a conversation without the consent of all parties involved in it. There are exceptions to this in certain states and territories, or otherwise in limited circumstances, such as when a warrant applies.

If an organisation wants to record a conversation or monitor a call, they must inform all parties at the beginning of the conversation and give them the option to either end the call or transfer to another line that isn’t recorded.

Germany

Recording without consent is illegal. No one may record a conversation without the consent of all parties involved in that conversation.

Can a legal person record a conversation?

The law isn’t clear whether a “legal person” (like a company or other non-person) could provide this consent to record a conversation. This is important for those instances where a supervisor listens in on the calls of call center operators, or where an automated telephone system records their calls to monitor performance. In this example, the operators might not be giving their consent, the supervisor isn’t technically part of the conversation, and the call may be recorded by the telephone system physically can’t consent. It may be possible to argue, however, that because the company has provided the system, they are a party to any communication that is sent or received on it.

You should inform people

Be safe, rather than sorry. Even if the law doesn’t require you to get the consent of the other party to the conversation, it is still polite to inform them that you are recording it. Many customers will feel betrayed if they find out you have recorded their conversations without them knowing. They might not have a legal claim against you, but it could still damage your business image.

But always remember, if you are not party to the conversation at all, it is unlawful to record it.

By | 2017-05-16T11:21:08+00:00 March 28th, 2017|Categories: Monitoring Law|Tags: , , |