DisclaimerThe information is presented in good faith but no responsibility is accepted for the accuracy of this information. You should not rely on it legally. If in doubt, consult a solicitor. This information applies the UK only. The information here is not presented on behalf of any company or official body. IntroductionThis question comes up time and time again in Usenet newsgroups. Usually, as is typical with Usenet, people claim one thing, but offer no evidence, then someone else claims the opposite, so beware free advice :-). Please don't email me directly to discuss this; please use the uk.telecom newsgroup. This document you're reading now is now quite old and has been superceded by legislation since. For more up to date information please investigate : The following information was based around that available in 1997. The law and Oftel guidelines may have changed considerably since then.SummaryIn the following paragraphs, we explain the following :
Why would you want to record someone ?The most common reason for wanting to record calls is accuracy; where business or financial transactions are being conducted, it may be very hekpful to refer back to audio transcripts, either to verify details taken down or to prove that something was said and agreed to. Other people record calls in order to check their own, or their staff's telephone manner and performance. Mistakes are always made - none of us are perfect, but at least with a recording one can sometimes accurately determine who made the mistake. Knowing one is being recorded can often have a beneficial effect on one's accuracy. In my experience, there is a difference between someone 'talking rubbish through ignorance whilst trying to be helpful' and someone 'deliberately lying'. Another quick comment : Some people seem to want to record people without their knowledge to deliberately entrap them into saying/admitting something so that the tape transcript can then be used against them. Some people even go so far to ask deliberately misleading questions to confuse/goad the other party, who might just be doing their best ! As I said above, informing the other party of the recording is likely to make them more careful and accurate in the first place, thus AVOIDING any mistakes altogether. So, in some circumstances, unless you're just plain dishonourable and you WANT people to make mistakes so that you can 'sue' them, you might decide that advising people of the recording works in your favour ! On the other hand, some people/companies are in the habit on continuously making claims which they know to be false, and they should be stopped. The 'Evidence'NOTE : Extracts from the Act and the licences are further down this document, for easy cross reference. In this section, the Act is taken to mean the Telecommunications Act 1984. In the Act, in Section 1, Part 4. (1) the term "telecommunications system " is defined to include any kind of telecomms system capable of carring voice, data or pictures. That would include even a single instrument such as a simple telephone in your home, as well as more complete systems. So, Point 1 : The term "telecommunications system" includes even a single telephone in your house. Under the Act, you can only use or operate a telephone system (including a simple phone in your home) if you have a licence (Section 5, Part 2). So, on the basis of this, : Point 2 : Operation of a telecommunications system without a licence is a criminal offence. i.e. you need a licence. Section 7, Part (3) states that the licence can be granted to a 'class' of people - i.e. rather than each person or premises having to be individually licences (as with, say, TV licences). i.e. the licence can be issued to a class (group) of people and they are then all automatically licenced. So :Point 3 : All telecomms users are automatically granted a licence to operate a phone system, without having to individually apply for one. Section 7 of the Act also specifies that the licence is granted, maintained and varied by Oftel/DTI (referred to as The Director / Secretary of State). It makes no difference who your telecomms provider is, be it BT, C&W or anyone else. Section 7 (Clause 6(a)) also states that any licencee is bound by whatever terms are considered appropriate to include within that licence. So, on this basis : Point 4 : Any licencee is automatically bound by the terms of the licence as issued by Oftel/DTI. So, having established that under the act one needs a licence, the final piece of the jigsaw is the licence terms themselves. With regard to recording a telephone conversation, section 7.3 (quoted in full later) states that the Licensee shall make every reasonable effort to inform all parties before recording a call. So : Point 5 : The licence states that all parties must be informed before recording can take place. Finally, Section 16, Parts (1) and (2) state what action may be taken to ensure compliance, so :Point 6 : Action may be taken against any person who contravenes the terms of the licence.
Criminality & LegalityAlthough a breach of the Telecomms Act directly is a criminal offence, a breach of a licence condition is not in itself a criminal offence. However, failure to obey an Order requiring the licensee to comply with licence conditions may be treated as a contempt of court, punishable under criminal law.Source : Usenet article 01bd062c$3b381220$01622cc3@itunit in uk.telecom by Frank Phillips, Oftel). So, it appears that because the licence terms are not within the 1984 act, it is not actually 'illegal' per se to breach the licence. However, to claim plainly " It's not illegal " would be misleading if stated out of context (see 'Personal Opinion' above). Tapping into, recording or listening into a conversation where neither party is informed is illegal (I think under the Interception of Communications Act). There are also other laws governing wireless transmission (cellphones etc). As mentioned in the introduction, other Acts may pertain to any court case too. Comment from OftelThis message was taken from usenet uk.telecom as a response to my original posting of this information : From: "Peter WALKER" Your extracts of the TSL and SPL and guidance are of course accurate. Recording calls without informing callers is a breach of the licence. There are two schools of legal thought. If you breach the licence OFTEL could under S16 of the T Act make an order against you requring you to comply. Failure to then comply could lead to civil action by the damaged party or by OFTEL themselves. The second school of thought says that failure to comply with the class licence means that you are running an unlicensed system, which is a criminal offence under the T Act, fine UKP5000. In practice, you are more likely to get a warning letter from my staff, reminding you of your obligations. Further Explanation (Source : Oftel)Under the 1984 Telecommunications Act, a requirement was introduced that to use or run a telecommunications system, one must have a licence. A 'telecommunications system' can be a single telephone instrument or a whole network. There are two types of licences (1) The Telecommunication Services Licence (TSL), which is required by all telecommunications operators and (2) The Self Provision Licence (SPL) which is required by all telephone users, and granted by default/automatically to all phone users. This licence includes residential users. Thus, if you are using a telephone on the PSTN, you are bound by the terms of the SPL. The SPL and TSL are regulated by Oftel and periodically amended. On 9 September 1996 revised versions of the Telecommunication Services Licence (TSL) and the SelfProvision Licence (SPL) came into force. A General Variation, NS/V/1235/T/100023 (GV No 23) was issued in March 1995 which permitted the standard warn tone built into equipment capable of recording monitoring or intruding into twoway live speech telephone calls to be replaced by an alternative form of warning (see OFTEL Update SA67). The revised versions of the TSL and SPL contain a new condition, relating to the Privacy of Messages (Condition 7). A Variation issued on 10 February 1997 aligns the requirements of GV No 23 with those of this newcondition, thus ensuring that users complying with it will automatically also meet the requirements of the General Variation. Extract from the SPL and TSL (Source : Oftel)PRIVACY OF MESSAGES(Note : The word 'shall' is used, not 'should'. In law, I understand that this defines a compulsory act rather than a recommendation).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 interests 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 74. Thus 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 74 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 the 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. EXPLANATION of Condition 7Condition 7 : Privacy of messages17 This is a new condition in the TSL and SPL which applies in circumstances where you wish to use telecommunications apparatus comprised in or connected to your system to record, silently monitor or intrude into live speech telephone calls. (It does not apply where the apparatus in question is not telecommunications apparatus, i.e. is not apparatus that has been constructed or adapted for use in transmitting or receiving telecommunications messages). Silent 'monitoring is the establishment of a receive only transmission path to a third terminal, enabling a third party to hear the call. Intrusion is the establishment of a both-way speech transmission to another terminal enabling a third party to hear and be heard by at least one of the other parties to the call. The condition does not apply to the monitoring of telephone calls for systems control or diagnostic purposes where the meaningful content of the call itself is not monitored. 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. 19 You should also maintain a record of the means by which callers have been warned, which the Director may request sight of. This does not mean that you have to log each telephone call; rather that should a dispute arise it will be possible for you to show from records how callers were being made aware at that time. 20 The condition does not apply where apparatus is being used for the purpose of law enforcement or in the interests of national security or to calls involving the national Emergency Organisations. It also provides that other licensees may be excluded, by means of a Director's consent, where there are compelling factors that outweigh the normal expectation of privacy. Such factors might apply where security is a consideration or in the case of specialised users such as helplines. In accordance with section 19 of the Telecommunications Act 1984 these consents will be entered on a register open to public inspection. 21. This condition attempts to secure objectives similar to those which were previously achieved through an approval requirement that equipment capable of recording, silently monitoring or intruding into telephone conversations should emit warning tones as these operations took place. The removal of warning tones was permitted by a General Variation provided that an alternative form of warning was given. The expectation is that procedures complying with the General Variation should, generally, also meet the requirements of this condition. Extracts from the Telecomms Act 1984SECTION 1 - DEFINITIONS 4. (1) In this Act "telecommunications system " means a system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energey, of- (2) For the purposes of this Act telecommunication apparatus which is situated in the United Kingdom and - Parts 3 and 4 go into more detail about definitions... SECTION 5 - REQUIRMENT OF A LICENCE (2) Subject to the provisions of this section, a person who runs
within the United Kingdom a telecommunication system which he is
authorised to run by a licence granted under section 7 below shall
be guilty of an offence if--- SECTION 6 (Exceptions to section 5) (1) [repealed by the Broadcasting Act 1990] SECTION 7 (Power to license systems) (1) A licence may be granted---
(a) by the Secretary of State after consultation with the Director; or SECTION 16 (ENFORCEMENT OF THE ACT) (1) Subject to subsections (2) and (5) and section 17 below, where the Director is satisfied that a person who is authorised by a licence granted under section 7 above to run a telecommunication system (in this Act referred to as "telecommunications operator") is contravening or has contravened and is likely again to contravene, any of the conditions of his licence, the Director shall by a final order make such provision as is requisite for the purpose of securing compliance with the condition. (2) Subject to subsection (5) below, where is appears to the Director -
(a) that a telecommunications operator is contravening or has
contravened and is likely again to contravene, any of the
conditions of his licence; and (3) In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional order be made, the Director shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of the relevant condition, is likely to be done, or omitted to be done, before a final order may be made. (4) Subject to subsection (5) and section 17 below, the Director
shall confirm a provisional order with or without modifications if - (5) The duties imposed by subsections (1) to (4) above shall not
apply where the Director gives notice that he is satisfied - (6) A final and provisional order - (7) In this section and sections 17 and 19 below- (8) References in this section to conditions of a licence do not include references to conditions relating to the applications to the telecommunication code. SECTION 19 (1) The Director shall keep a register of licences granted under section 7 above and final and provisional orders at such premises and in such form as he may determine. (2) Subject to any direction given under subsection (3) below, the
Director shall cause to be entered in the register the provisions of - (3) If it appears to the Secretary of State that the entry of any provision in the register would be against the public interest or commercial interest of any person, he may direct the Director not to enter that provision in the register. (4) The register shall be open to public inspection during such hours and subject to payment of such fee as may be prescribed by an order made by the Secretary of State. (5) Any person may, on payment of such few as may be prescribed by an order so made, require the Director to supply to him a copy of or extract from any part of the register, certified by the Director to be a true copy of extract. (6) Any sums received by the Director under this section shall be paid into the Consolidated Fund. How to contact OftelOFTEL Other sites of interest
© 7/12/97 Thank you to Andy Emmerson for TSL extracts and Mike Todd and Peter Ileive for the Act extracts. This document may NOT be reproduced without permission. You can refer to the URL : http://www.seg.co.uk/telecomm/record.htm |