Many businesses engage in the practice of recording customer calls. They do so for various reasons, including to verify quality of service, to handle complaints or to train employees.
Because these recordings contain customers' personal information, certain precautions must be taken in the collection and retention of such information, especially since the subsequent use thereof, without a customer's consent, may infringe on his privacy rights.1
The Québec Act Respecting the Protection of Personal Information in the Private Sector2 ("APPIPS") does not govern this process and, to the best of our knowledge, the Commission d'accès à l'information du Québec has not yet ruled on the issue.
The Office of the Privacy Commissioner of Canada has published Guidelines for Recording of Customer Telephone Calls3 for private sector companies operating in Canada. Given that the obligations imposed by the Personal Information Protection and Electronic Documents Act4 ("PIPEDA") are substantially the same as those imposed by APPIPS, it is our opinion that the federal guidelines should be followed by Québec companies.
The Office of the Privacy Commissioner is of the view that the recording of customer calls is permitted under PIPEDA subject to compliance with certain requirements, applicable both to incoming and outgoing calls.
First, the collection of information must be motivated by a specific purpose. In Québec, the APPIPS expressly provides that, "[a]ny person collecting personal information to establish a file on another person or to record personal information in such a file may collect only the information necessary for the object of the file"5. This suggests that the use of such recordings for purely administrative purposes would be difficult to justify in view of this requirement. Customer service representatives must exercise caution when recording phone calls and must refrain from asking questions or making comments that could result in the collection of information that is unrelated to the reasons for recording the call.
Federal guidelines also stipulate that in order to comply with PIPEDA, it is necessary to inform the person, at the outset, that his or her call may be recorded. A customer's consent may be obtained in several ways. He or she can be verbally advised either by an automatic recording or by a customer service representative. According to federal guidelines of the Commissioner, a clear statement by the company printed on customers' monthly statements could also suffice.
Furthermore, a reasonable effort must be made to inform the customer of the reasons for the recording. It is important to note that the company must communicate clearly the real reason. It cannot claim, for example, that the recording is for the purpose of quality control when in fact it will be used to fulfill other objectives, as legitimate as those may be.
However, a caller's tacit consent may be inferred if, knowing the conversation is being recorded for a particular purpose, the caller does not object thereto and continues the conversation. If the caller refuses to allow the recording, he must be offered certain practical solutions, such as to not have the call recorded, to present himself at the nearest branch or point of sale, or to submit a complaint, question or comment online or by mail. In our opinion, it is not necessary that these options be presented at the outset of each call but they can be outlined in the company's privacy policy, for example, or as a stipulation appearing on customers' monthly statements.
Notwithstanding a few exceptions, telephone conversations cannot be recorded without the express or implied consent of the person whose personal information is being collected. Included in the exceptions, under PIPEDA, consent is not required when the purpose of the recording is debt recovery or investigation of potential fraud. In such circumstances, the need to obtain consent could adversely affect the company's ability to obtain accurate information.
Lastly, the guidelines only address the protection of personal information of customers. However, the recordings may also infringe the privacy rights of employees. Therefore, employees should also be informed of the practice and the reasons for the recording.
Footnotes
1 Civil Code of Québec, S.Q. 1991, c. 64, arts. 35 and 36.
2 R.S.Q., c. P-39.1.
3 Office of the Privacy Commissioner of Canada, Guidelines for Recording of Customer Telephone Calls, June 10, 2008, available online: http://www.priv.gc.ca/resource/fs-fi/02_05_d_14_e.asp
4 S.C. 2000, c. 5.
5 Section 5, APPIPS.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
