Monday, July 17, 2006

Can you record telephone calls without consent?

During the last week, the Supreme Court of California overturned a lower court and held that it is unlawful to record phone conversations of Californians, even if one party to the call is in a jurisdiction that permits such recording. (See: State Supreme Court Says Out-of-State Firms Can't Secretly Record Californians' Calls - Los Angeles Times.)

If often get e-mail from readers of this blog and the most common question is whether you can record phone calls (to which you are a party) without the other party's knowledge or consent. The answer to this question is a bit complicated, particularly because of rulings like that of the California Supreme Court.

What follows is a general discussion of the laws in Canada that need to be consulted to determine if recording is lawful. Circumstances vary widely and this is not a full review of all the laws that may be relevant, so this should not be considered to be legal advice. I also note this is not about recording for law enforcement purposes, where different rules will apply.

For calls originating and terminating in Canada, the first place to look (but not the last!) is the Criminal Code of Canada. Part VI of the Code is entitled "Invasion of Privacy" and addresses the issue of the interception of private communications. In short, it makes it illegal to intercept a private communications unless authorized by the Code (e.g. with a warrant or as part of maintaining the communications system) or unless the consent of one of the parties is obtained. The same holds true for radio-based communications, under both the Code and the Radiocommunications Act, which also prohibits divulging a radio-based communication without the consent of a party to that communication.

For private actors (as opposed to agents of the state), we have to also look at general privacy legislation, including the Personal Information Protection and Electronic Documents Act (Canada) aka PIPEDA, the Personal Information Protection Act (Alberta), the Personal Information Protection Act (British Columbia) and an Act Respecting the Protection of Personal Information in the Private Sector (Quebec). None of these statues apply to purely personal endeavours. For example, PIPEDA says:

[3](2) This Part does not apply to ...
(b) any individual in respect of personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose; or

(c) any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose.

Alberta's PIPA similarly reads:

[3](3) This Act does not apply to the following:
(a) the collection, use or disclosure of personal information if the collection, use or disclosure, as the case may be, is for personal or domestic purposes of the individual and for no other purpose;

(b) the collection, use or disclosure of personal information if the collection, use or disclosure, as the case may be, is for artistic or literary purposes and for no other purpose;

However, if the recording is for commercial purposes, such as the recording of customer service calls, the knowledge and consent of the individual is required. (Some consent exceptions may apply, but should not be relied upon unless you have specific legal advice.)

But that's not the end of the inquiry. Before you hit "record", you also have to consider whether the recording may be an invasion of privacy under the common law or those statutes which have created an express tort of invasion of privacy. For example, Newfoundland's Privacy Act creates a private right of action for an unreasonable invasion of privacy, but specifically excludes listening to or recording a conversation by a lawful party to a phone conversation. (Though the recording is not an invasion of privacy per se, the specific use of that call might be an invasion of privacy.)

So what is the conclusion? A lawful party to a call that starts and ends in Canada can record that call if they are doing so for a personal or journalistic reason and not a commercial purpose. If recording is to be carried out in connection with a commercial activity, check out "Focus on Privacy - Call Monitoring".

10 comments:

Anonymous said...

Hi,

Great post!
I was wondering if you have the answer to this...let's say I call a company and I hear something like "this call will be recorded for training purposes", (or quality assurance, or whatever).

I am not given any option for my consent or non-consent to this recording.
Can I then tell whoever answers the phone, "I do not want this call to be recorded."

Will they have to comply?
Of course, I realize there is no way for me to know if they actually stop recording the call or not, but I want to know if legally they are obligated to comply if I do not give my consent for the call to be recorded?

Thanks!

Anonymous said...

Actually you do have a very simple way to give or not-give your consent in such a situation.

If you do not consent, you hang up.

Julia-Emma said...

I'm wondering, if I'm in conversation with the bank regarding a charge I do not believe I consented to, and the bank plays the message saying they're recording me, is it legal for me to record them in return? It seems unfair that they can record and cherry-pick whatever information they want whereas I'd like to be able to use such conversations as evidence too.

1strate said...

Of course not. Unless everyone in the call accepts and allows for the call to be recorded then it should not be. As a previous commenter said he/she has called up various call centre's before and there has been an automated answering service that has told him/her that the call is going to be recorded for training purposes. Surely this cannot be legal, but how can you stop it?

Anonymous said...

Hi, I was wondering if it would be possible to get further clarification. I want to record Committee meetings, both to assist in the minute/note taking process and for prosperity and history of conversations. These committees often have 5+ people on them. Do I need to have consent from all parties in order to record the call? Or can record it without their consent so long as I notify them that I am doing it.

Thanks!

Anonymous said...

Please help; Is is lawful if I am recording a call which is going from Canada to India and I am intended to use it for personal, legal matter?

Anonymous said...

And how do you acces the service then if in particullar some mobile providers only options to change your plan is trough calling an operator?

Anonymous said...

Hmm. how about the scenario where your husband provokes and goads you into an argument(s) then records these arguments that he created and 'LED' daily for months on end in your own home and bedroom. Something is wrong with that, but apparently is legal in Ontario.. I think that is sad and violates what I think should be an expectation of privacy in your own home.. Arghh sad, pathetic and abusive is my take, there should be some sort of legal recourse.

Vishali Sharma said...

hey
i report to police taht my bf's freind sexually assault me. my bf told me on phone that i should not gp to police nd all. he was recording my conversation. isaid stuff like, yh i should not and all. i done wrong with him by going to police. now by editing this recording it sound like that i did wrong( like nothing happened i falsely report) he also discuss sex life in that recordings. i do no want to share taht stuff with anyone due to cultura. does he has any right to record my conversation? what can i do? please advice me

David Fraser said...

You should speak with a lawyer in your local jurisdiction who would be able to advise you on this situation.