This week’s story that the Metropolitan Police Commissioner surreptitiously recorded a telephone conversation with the Attorney General raises an issue which is often misunderstood.
Intercepting calls of someone else is an offence under the regulation of Investigatory Powers Act 2000 unless it is done with consent. However, there is no prohibition on recording your own private telephone calls provided it is for your own use. However, if the recording is made without the other party's consent and the recording is given to a third party, this may amount to a breach of their right to privacy under the Human Rights Act.
Article 8(1) of the European Convention of Human Rights gives everyone the right to respect for their private life. Although it involves secret filming as opposed to phone tapping, the case of R v Broadcasting Standards Commission, ex parte British Broadcasting Corporation [2001] 1 BCLC 244 established that it is a prima facie breach of privacy to record a person where they are entitled to a reasonable expectation of privacy. Therefore, where a party to a telephone conversation has not been informed that the call is being recorded, their right to privacy will almost certainly have been breached.
However, rights to privacy have to be balanced with the Article 10 right to freedom of expression. Telephone calls may be recorded and broadcast or published without consent if the recording and subsequent publication is considered to be in the public interest. Typically this would be where it discloses some crime or serious misconduct or incompetence.
The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 specifically allow for companies to routinely record calls for various purposes, including to provide evidence of business transactions, for quality monitoring and to ensure regulatory compliance, provided that reasonable efforts have been made to inform users of the telephone system that calls are recorded.
It should be remembered that in litigation in England and Wales, telephone recordings may be disclosable as "documents" if relevant to the dispute, although it will be for a court to decide whether such recordings are admitted as evidence in each particular case.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 15/03/2006.
