Hold the phone on recording rule

One provision of the new TCP Code could be positively dangerous, and reflects a widespread misunderstanding about Australian telecommunications law.  And we mean ‘widespread’.  Many people don’t realise that recording a customer call can incur 2 years jail time.

The legal rule is simple:  If you record one, single word spoken on the phone by a person who doesn’t know they are being recorded, you commit a crime.  If the called party picks up, and says ‘hello’ and you are already recording, it’s too late.  Section 7 of the Telecommunications (Interception and Access) Act 1979 has been breached.

What section 7 says

Telecommunications not to be intercepted

(1) A person shall not:

(a) intercept;

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.

You also need to know what section 6 of the TIA Act says

For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

So what’s it add up to?

A person must not listen to or record a phone communication without the knowledge of the person who speaks it.  And in case you’re wondering if recording a single word really is a breach, see the definition of ‘communication’.

“communication” includes conversation and a message, and any part of a conversation or message …

A couple of notes

First, this law only applies to communications passing over a telecommunications system.  That (roughly) means ‘while it’s in the wires’.  If you place a recorder next to a speaker phone, and record what’s said once it’s ‘out of the wires’ and ‘in the air’, this law doesn’t apply.  (Other laws may, but not this one.)

Second, note that the actual consent of the speaker is not required.  All that’s required is that they know they will be recorded if they go ahead and speak.

That’s why recorded inbound calls invariably include a message like ‘this call may be monitored for quality control purposes’ before recording starts.  The speaker doesn’t have to consent or not consent.  If they speak, in the knowledge that there will be a recording, the person making the recording doesn’t break the law.

So what’s wrong with the TCP Code on this point?

Clause 4.3.6 of the Code provides:

Recording calls: A Supplier must inform a Consumer if the Supplier is recording a phone call between the Supplier and the Consumer.

A Supplier must take the following action to enable this outcome:

(a) Disclosure: disclose to the Consumer that the phone call is being recorded by the Supplier.

This plainly indicates that it might be acceptable to start a recorder, and to conduct the following call:

Ring Ring.

Called party: “Hello”.

Caller:  “Hello, am I speaking to Mary Smith?”

Called party: “No, Mary is my sister.  I’ll get her for you.  Who’s calling?”

Caller: “It’s Bob from WonderTel.”

Called party: “OK, please hold on.”

Called party:  “Hello?”

Caller:  “Is this Mary Smith?”

Called party:  “Yes.”

Caller:  “Mary, I’m Bob from WonderTel and I’m calling to see if we can offer you a better value phone service than your current provider.  Can I talk to you about that?”

Called party: “Yes.”

Caller:  “Great.  Now before we go on, I will tell you that this call is being recorded for quality control purposes, OK.  Now, tell me, Mary, who is your current home phone provider?

That in fact breaks the law, twice! … Once when the original person picked up and spoke, and again when Mary came to the phone and spoke.  Recording should not have started until after the final para.  To say that a called party ‘is being recorded’ indicates a breach of the TIA Act.

What should the TCP Code have said?

Recording calls: A Supplier must not record a phone call between the Supplier and the Consumer before the Consumer has been informed that the call will be recorded.

A Supplier must take the following action to enable this outcome:

(a) Disclosure: not record any part of a phone call with a Consumer before the Consumer has been informed that the phone call will be recorded by the Supplier.






About Peter Moon

A telco lawyer with a truckload of experience
This entry was posted in Backgrounders. Bookmark the permalink.