Can you record telephone calls?

United Kingdom

This week’s story that the Metropolitan Police Commissioner surreptitiously recorded a telephone conversation with the Attorney General raises an issue which is often misunderstood.

Intercepting calls of someone else is an offence under the regulation of Investigatory Powers Act 2000 unless it is done with consent. However, there is no prohibition on recording your own private telephone calls provided it is for your own use. However, if the recording is made without the other party's consent and the recording is given to a third party, this may amount to a breach of their right to privacy under the Human Rights Act.

Article 8(1) of the European Convention of Human Rights gives everyone the right to respect for their private life. Although it involves secret filming as opposed to phone tapping, the case of R v Broadcasting Standards Commission, ex parte British Broadcasting Corporation [2001] 1 BCLC 244 established that it is a prima facie breach of privacy to record a person where they are entitled to a reasonable expectation of privacy. Therefore, where a party to a telephone conversation has not been informed that the call is being recorded, their right to privacy will almost certainly have been breached.

However, rights to privacy have to be balanced with the Article 10 right to freedom of expression. Telephone calls may be recorded and broadcast or published without consent if the recording and subsequent publication is considered to be in the public interest. Typically this would be where it discloses some crime or serious misconduct or incompetence.