Nowadays, our communications are increasingly digital and recording conversations has been drastically simplified by the appearance of a variety of innovative apps and software tools While recording conversations can be a convenient way to capture important information, one is often faced with dilemmas about privacy, ethics and regulations. Simply recording a conversation: is that even allowed?

Recording conversations: difference between private and company

There are several situations in which conversation recording can play a role, including phone calls, online meetings and physical appointments. In each of these situations, the rules and expectations are different. This also applies with regard to private individuals and companies. Indeed, more lenient rules apply to private individuals than to companies.

Rules on recording calls for private individuals

The recording of a telephone conversation by a private person is in principle allowed, provided that the person himself participates in the conversation and the recording is intended for private use. After all, a person has the right to record his own communication to protect his own interests. It is not required that permission be sought from the other party/parties to the conversation. That said, it is ethical to inform the other party/parties of the making of the recording and the reason for it.

In contrast, publicly disclosing a recording is not allowed simply because it falls under processing personal data within the meaning of the AVG. A telephone conversation often contains personal information such as a name, address, phone number or other sensitive information such as financial or medical data. In addition, a person's voice is a biometric data that can identify a person, this also falls under personal data. When processing personal data, consent of the party/parties or a legitimate interest is required. The latter proves very difficult to make plausible in practice.

The same rules apply to recording physical appointments as to recording telephone conversations. Thus, recording is only allowed if the person making the recording participates in the conversation himself and does not publicly disclose the recording without the consent of the person involved or legitimate interest. Even in this case, it is ethical to inform the other participants in the conversation about the recording. This is to avoid a breach of trust.

In the case of online meetings, similar rules apply, but due to the visual element of this meeting, the privacy implications may be greater than for phone calls and physical appointments. The AVG applies in many cases because personal data is being processed. Indeed, data such as participants' name, voice and image are processed, as well as their IP address and other technical data. For the recording of an online meeting, participants must give their prior consent to the recording or the person recording the meeting must be able to prove the existence of a legitimate interest. The latter is rather difficult in most cases, as participants' privacy interests often outweigh a legitimate interest.

Rules on recording calls for companies

Companies are under stricter and more complex rules than private individuals, especially under the AVG Companies are not allowed to simply record conversations, even if they themselves take part in the conversation. In accordance with the AVG, companies must obtain explicit consent from all participants or demonstrate a legitimate interest prior to recording conversations, which includes telephone conversations as well as physical appointments and online meeting This legitimate interest could be, for example, ensuring the safety of employees and employer, preventing employee fraud or checking the quality of services.

Companies are obligated to provide transparency on the specific purpose of the recording and the retention period of the recorded data. As there is no strict retention period for retaining recordings, companies must be able to justify the retention period they use with regard to proportionality and necessity. It is important to carefully consider whether there are not less intrusive ways to achieve the same purpose and whether measures can be taken to limit the invasion of privacy.

Companies should prepare a clear privacy statement that meets the strict requirements of the AVG. This can include policies on how to comply with AVG rules. An example would be playing an automatic message before the start of a phone call stating that the call is being recorded and for what reason. Finally, companies should ensure that the collected data and recordings are stored in a secure manner and that the recorded data are protected against any data breach and/or unauthorised access.

Conclusion

The core of the issue surrounding call recording lies in the tension between the right to privacy, on the one hand, and the need to record important information, on the other. Both private individuals and companies must therefore navigate a maze of rules and legislation to ensure that their actions remain within the bounds of the law.

Do you have questions or need advice on the legality of recording conversations or do you have other privacy-related issues? Then please contact the lawyers and jurists at SPEE advocaten & mediation, they will be happy to assist you.