Guidelines for recording calls

Earlier this year, the News Of The World’s royal correspondent was jailed for tapping the phone messages of royal aides. But is it ever permissible to intercept calls?

The Regulation of Investigatory Powers Act 2000 (RIPA) governs when communications may and may not be intercepted. ‘Interception’is defined as interfering with a telecommunication system or monitoring the transmissions so as to make part, or all, of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.

This includes recording or diverting the communication while it’s being transmitted so as to be available to a person subsequently.

Intercepting a communication is a criminal offence except in certain defined circumstances. The exceptions include where the transmission is by way of a private telecommunication system and the interceptor has the right to control the operation or use of the system, or has the express or implied consent of the person who has such control to make the interception.

A ‘private telecommunications system’includes a fixed or mobile handset. Therefore, if a journalist records a call which he makes on his personal phone for which he is the account holder, that is unlikely to be a criminal offence. If, however, he records a call at work using his employer’s handset, he must have his employer’s express or implied consent to record it to avoid criminal liability.

It is important to note that, even if no criminal offence is committed, the innocent party may have statutory claim if the interception is carried out without the consent of both parties to the call. It might also give rise to other civil claims such as breach of confidence/invasion of privacy or breach of the Data Protection Act, particularly if the contents of the communication are published. It should be mentioned the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 permit the interception of transmissions, with the express or implied consent of the system controller.

To fall within this, though, the interception must be solely for the purpose of monitoring or keeping a record of communications relevant to the system controller’s business. The system controller must also make all reasonable efforts to inform every person who may use the system that communications may be intercepted. It is therefore unlikely to be relevant to many journalistic situations.

The PCC Code of Practice states the press must not obtain or publish material acquired by intercepting private or mobile telephone calls, messages or emails without consent unless it can be demonstrated to be in the public interest to do so. RIPA makes inadmissible any evidence of the contents of intercepted communications where the interception was a criminal offence committed by defined categories of people listed in sections 17 of the Act, for example, the Police.

If no criminal offence has been committed there is, in theory, no reason why such evidence should not be admissible.

RIPA is a complex piece of legislation, with many caveats and draconian penalties, so careful consideration should be given to the specific circumstances surrounding the particular call which you want to record before you proceed to do so.

Amali de Silva is a senior associate with specialist media law firm Wiggin LLP

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