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".