Am I allowed to record my own telephone conversations ?

Disclaimer

The 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.

Introduction

This 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This document you're reading now is now quite old and has been superceded by legislation since.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 :

  • Oftel's View
  • Lawful Business Regulations 2000 - See Para 3.2(c)
  • Regulation of Investigatory Powers (RIP) Act 2000

  • The following information was based around that available in 1997. The law and Oftel guidelines may have changed considerably since then.

    Summary

    In the following paragraphs, we explain the following :

    • Point 1 : The term "telecommunications system" includes even a single telephone in your house.
    • Point 2 : Operation of a telecommunications system without a licence is a criminal offence. i.e. you need a licence.
    • Point 3 : All telecomms users are automatically granted a licence to operate a phone system, without having to individually apply for one.
    • Point 4 : Any licencee is automatically bound by the terms of the licence as issued by Oftel/DTI.
    • Point 5 : The licence states that all parties must be informed before recording can take place.
    • Point 6 : Action may be taken against any person who contravenes the terms of the licence.

    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 & Legality

    Although 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 Oftel

    This message was taken from usenet uk.telecom as a response to my original posting of this information :

    From: "Peter WALKER"
    Newsgroups: uk.telecom
    Date: 9 Dec 1997 22:54:13 GMT
    Message-ID: <01bd04f5$4eddcfa0$26f282c1@mine>

    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.

    pwalker.oftel@gtnet.gov.uk


    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 7

    Condition 7 : Privacy of messages

    17 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 1984

    SECTION 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-
    (a) speech, music and other sounds;
    (b) visual images;
    (c) signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images; or
    (d) signals serving for the actuation or control of machinery or apparatus.

    (2) For the purposes of this Act telecommunication apparatus which is situated in the United Kingdom and -
    (a) is connected to but not comprised in a telecommunication system; or
    (b) is connected to and comprised in a telecommunication system which extends beyond the United Kingdom
    shall be regarded as a telecommunication system and any person who controls the apparatus shall be regarded as running the system.

    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---
    (a) there is connected to the system---
    (i) any other telecommunication system; or
    (ii) any apparatus, which is not authorised by the licence to be so connected; or
    (b) there are provided by means of the system any telecommunication services which are not authorised by the licence to be so provided.
    (3) A person guilty of an offence under this section shall be liable
    (a) on summary conviction, to a fine not exceeding the statutory maximum;
    (b) on conviction on indictment, to a fine.
    (4) Where the commission by any person of an offence under this section is due to the act or default of some other person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.
    (5) In any proceedings for an offence under this section it shall, subject to subsection (6) below, be a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid committing the offence.
    (6) Where the defence provided by subsection (5) above involves an allegation that the commission of the offence was due to the act or default of another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.
    (7) No proceedings shall be instituted in England and Wales or Northern Ireland in respect of an offence under this section except by or on behalf of the Secretary of State or the Director.

    SECTION 6 (Exceptions to section 5)

    (1) [repealed by the Broadcasting Act 1990]
    (2) Section 5(1) above is not contravened by---
    (a) the running of a telecommunication system in the case of which the only agency involved in the conveyance of things thereby conveyed is light and the things thereby conveyed are so conveyed as to be capable of being received or perceived by the eye and without more;
    (b) the running by a person of a telecommunication system which is not connected to another telecommunication system and in the case of which all the apparatus comprised therein is situated either---
    (i) on a single set of premises in single occupation; or
    (ii) in a vehicle, vessel, aircraft or hovercraft or in two or more vehicles, vessels, aircraft or hovercraft mechanically coupled together; or
    (c) the running by a single individual of a telecommunication system which is not connected to another telecommunication system and in the case of which---
    (i) all the apparatus comprised therein is under his control; and
    (ii) everything conveyed by it that falls within paragraphs (a) to (d) of section 4(1) above is conveyed solely for domestic purposes of his; and references in paragraphs (b) and (c) above to another telecommunication system do not include references to a telecommunication system to which subsection (2A) below applies (whether run by a broadcasting authority or by any other person).
    (2A) This subsection applies to a telecommunication system in the case of which every conveyance made by it is either---
    (a) a transmission, by wireless telegraphy, from a transmitting station for general reception of sounds, visual images or such signals as are mentioned in paragraph (c) of section 4(1) above; or
    (b) a conveyance within a single set of premises of sounds, visual images or such signals which are to be or have been so transmitted.
    (3) In the case of a business carried on by a person, section 5(1) above is not contravened by the running, for the purposes of that business, of a telecommunication system which is not connected to another telecommunication system and with respect to which the conditions specified in subsection (4) below are satisfied.
    (4) The said conditions are---
    (a) that no person except the person carrying on the business is concerned in the control of the apparatus comprised in the system;
    (b) that nothing falling within paragraphs (a) to (d) of section 4(1) above is conveyed by the system by way of rendering a service to another;
    (c) that, in so far as sounds or visual images are conveyed by the system, they are not conveyed for the purpose of their being heard or seen by persons other than the person carrying on the business or any employees of his engaged in the conduct thereof;
    (d) that in so far as such signals as are mentioned in paragraph (c) of section 4(1) above are conveyed by the system, they are not conveyed for the purpose of imparting matter otherwise than to the person carrying on the business, any employees of his engaged in the conduct thereof or things used in the course of the business and controlled by him; and
    (e) that, in so far as such signals as are mentioned in paragraph (d) of section 4(1) above are conveyed by the system, they are not conveyed for the purpose of actuating or controlling machinery or apparatus used otherwise than in the course of the business.
    (5) In this section---
    "broadcasting authority" means a person licensed under the Wireless Telegraphy Act 1949 to broadcast programmes for general reception;
    "business" includes a trade, profession or employment and includes any activity carried on by a body of persons, whether corporate or unincorporate;
    "vessel" means a vessel of any description used in navigation;
    "wireless telegraphy" has the same meaning as in the said Act of 1949.

    SECTION 7 (Power to license systems)

    (1) A licence may be granted--- (a) by the Secretary of State after consultation with the Director; or
    (b) with the consent of, or in accordance with a general authorisation given by, the Secretary of State, by the Director, for the running of any such telecommunication system as is specified in the licence or is of a description so specified.
    (2) A licence granted under this section shall be in writing and, unless previously revoked in accordance with any term in that behalf contained in the licence, shall continue in force for such period as may be specified in or determined by or under the licence.
    (3) A licence granted under this section may be granted either to all persons, to persons of a class or to a particular person.
    (4) A licence granted under this section may authorise---
    (a) the connection to any telecommunication system to which the licence relates of---
    (i) any other telecommunication system specified in the licence or of a description so specified; and
    (ii) any apparatus so specified or of a description so specified; and (b) the provision by means of any telecommunication system to which
    the licence relates of any telecommunication services specified in the licence or of a description so specified.
    (5) A licence granted under this section may include---
    (a) such conditions (whether relating to the running of a telecommunication system to which the licence relates or otherwise) as appear to the Secretary of State or the Director to be requisite or expedient having regard to the duties imposed on him by section 3 above;
    (b) conditions requiring the rendering to the Secretary of State of a payment on the grant of the licence or payments during the currency of the licence or both of such amount or amounts as may be determined by or under the licence; and
    (c) conditions requiring any person who is authorised by the licence to run a telecommunication system to furnish to the Director, in such manner and at such times as he may reasonably require, such documents, accounts, estimates, returns or other information as he may require for the purpose of exercising the functions assigned or transferred to him by or under this Part or Part III of this Act.
    (6) Without prejudice to the generality of paragraph (a) of subsection (5) above, conditions included by virtue of that paragraph in a licence granted under this section to a particular person may require that person---
    (a) to comply with any direction given by the Director as to such matters as are specified in the licence or are of a description so specified;
    (b) except in so far as the Director consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified; and
    (c) to refer for determination by the Director such questions arising under the licence as are specified in the licence or are of a description so specified.
    (7) A licence granted under this section specified otherwise than to a particular person shall be published in such manner as the Secretary of State or the Director considers appropriate for bringing it to the attention of the persons for whose benefit it will enure.
    (8) A copy of every licence granted under this section by the Secretary of State shall be sent to the Director.
    (9) Any sums received by the Secretary of State under this section shall be paid into the Consolidated Fund.
    (10) Neither the requirement to consult with the Director imposed by subsection (1)(a) above nor sections 8(5) and 10(6) below shall apply to the granting by the Secretary of State of the licence or licences which, having regard to the provisions of this Act, require to be granted (whether to British Telecommunications or to any other person) before the appointed day.
    (10A) Before the Secretary of State or the Director decides whether to grant or revoke a licence under this section which authorises the running of a telecommunication system to which subsection (10B) below applies, he shall consult with the Independent Television Commission.
    (10B) A telecommunication system is one to which this subsection applies if---
    (a) any person proposes to provide or is providing, by means of the system, a local delivery service (within the meaning of Part II of the Broadcasting Act 1990); and
    (b) notice of that fact has been given to the Secretary of State or the Director.
    (11) Where a licence granted under this section to a particular person includes a provision requiring that person to run any telecommunication system to which the licence relates through the agency of some other person, that other person, as well as the first mentioned person, shall be taken for the purposes of this section and the following provisions of this Part to be authorised by that licence to run that system.

    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
    (b) that it is requisite that a provisional order be made, the Director shall (instead of taking steps towards the making of a final order) by a provisional order make such provision as appears to him requisite for the purpose of securing compliance with that condition.

    (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 -
    (a) he is satisfied that the telecommunications operator is contravening, or has contravened and is likely again to contravene, any of the conditions of his licence; and
    (b) the provision made by the order (with any modifications) is requisite for the purposes of securing compliance with that condition.

    (5) The duties imposed by subsections (1) to (4) above shall not apply where the Director gives notice that he is satisfied -
    (a) that the duties imposed on him in section 3 above preclude the making of a final or provisional order or, as the case may be, the confirmation of the provisional order; or
    (b) that the contraventions or apprehended contraventions are of a trivial nature; and a notice under this subsection shall be given by publication in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice related to the attention of persons likely to be affected by them and by sending a copy of the notice to the telecommunications operator.

    (6) A final and provisional order -
    (a) shall require the telecommunications operator (according to the circumstance of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;
    (b) shall take effect at such time, being the earliest practical time, as is determined by or under the order; and
    (c) may be revoked at any time by the Director.

    (7) In this section and sections 17 and 19 below-
    "contravention", in relation to any condition of a licence includes any failure to comply with that condition and "contravene" shall be construed accordingly; "final order" means an order under this section other than a provisional order; "provisional order" means an order under this section which, if not previously confirmed under subsection (4) above, will cease to have an effect at the end of such a period (not exceeding three months) as is determined by or under the order.

    (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 -
    (a) every licence granted under section 7 above and every modification or revocation of, and every direction or consent given or determination made under, such a licence; and
    (b) every final or provisional order, every revocation of such an order and every notice under section 16(5) above.

    (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 Oftel

    OFTEL
    50 Ludgate Hill
    London EC4M 7JJ
    0171 634 8901
    http://www.oftel.gov.uk


    Other sites of interest

    The Strowger Telecomms Page


    © 7/12/97
    Last updated : 2nd January 1998
    Please don't email me for discussions about the law or licences or any other information here - this information is now quite old and may have been superceded. Please use the uk.telecom newsgroup for discussions !

    Thank you to Andy Emmerson for TSL extracts and Mike Todd and Peter Ileive for the Act extracts.
    This information is presented in good faith but not responsibility is taken for the accuracy of the information contained herein.

    This document may NOT be reproduced without permission.
    You can refer to the URL : http://www.seg.co.uk/telecomm/record.htm