When you call your mobile operator, bank or other company for customer support, for example, you know that a friendly voice always warns you at the beginning of the call that the call will be monitored to improve service.
When you call your mobile operator, bank or other company for customer support, for example, you know that a friendly voice always warns you at the beginning of the call that the call will be monitored to improve service.
If a company refuses to release a call recording, we can prepare a GDPR request for you or legally assess the situation.
The processing (making and keeping) of such a recording requires your consent, which you give by continuing the call after being notified that it is being monitored. The exception is where the call was recorded for the purpose of using the call to exercise or protect other rights or legally protected interests of others. However, you are unlikely to encounter this in an ordinary telephone call.
This type of call is not just mobile phone operators, but also banks or other companies that record our calls to improve their services or because a contract has been concluded during the call.
First of all, it is important to distinguish between these two modes as they have different processing modes. Recordings of non-contracted calls are kept for a limited period of time. There is no reason to keep them for a long time, so they must be evaluated for service improvement purposes and then destroyed.
Conversely, recordings proving the conclusion of a contract may be retained by companies for the duration of the contractual relationship and even for several years afterwards for possible disputes. For example, in our practice we have encountered a situation where an insurance company kept a recording for more than six years after an insurance claim and only submitted it to a court hearing.
In another case, a client made a claim for a contract made over the phone, but the operator claimed that he had agreed. When the recording was requested, it turned out that the consent was not unequivocal – the client succeeded in the claim as a result.
Whether the call involved two businesspeople or a business and a consumer plays an important role in the question of using a call recording in court. In the former case, the recording can be used, but only if consent to record has been given. In the second case, the situation is somewhat more complicated because of the personal nature of the call.
In the case of civil proceedings, the use of the call as evidence is, with a few exceptions, only possible if the other party consents. However, if the case is a criminal proceeding, the recording of the call can be used without the consent of the parties.
Tip: Read our article on what civil proceedings are and how they work.
Many companies refuse to provide these calls. For example, if there is a complaint, or if there is confusion about the content, they will call in a special team to listen to the recording and assess it. However, there is a question as to whether such a procedure is in accordance with the law.
This is because under the General Data Protection Regulation (GDPR), such a recording of a phone call constitutes processed personal data. You therefore have certain rights in relation to your personal data.
Specifically, you have the right to be informed about the processing of your personal data (which in the case of a call recording usually means collection, storage, disclosure, dissemination, erasure and destruction), the purpose of the processing and the identity of the controller. You also have the right to be informed about how long your personal data will be stored.
However, the most important right for you is the right to access and transfer your personal data. The period of time that the other party has for disclosure or transfer is set at a maximum of 60 days from the date of the request.
These rights may also be based on the terms and conditions of the company itself. However, the making of recordings is at the discretion of the company concerned, it is not a legal obligation.
If you are unsure how to word your request, our lawyer will prepare it in a way that gives you the best chance of success – in practice, it is often the details that make the difference. In practice, we see that companies refuse requests for recordings by referring to internal rules, but this alone is not enough. If it is personal data, there must be a legitimate reason for the refusal.
If you suspect a failure to comply with obligations in relation to your rights to your personal data, you can lodge a complaint with the Data Protection Authority. The DPO has 4 months to get back to you with the outcome, which may be, for example, an order for remedial action (in your case, providing a record of the phone call).
Unfortunately, in practice, you may not get hold of the “inappropriate” recording. Indeed, the person who made the recording may always end up saying that the recording was lost or destroyed, even if they are obliged to hand it over, or even request it from the court. It will then be difficult to prove the falsity of such a claim.
If you suspect that the company has violated your rights, it makes sense to deal with the situation quickly – as evidence can be lost or deleted. We’ll be happy to help.
Do you have a question about your call recordings or privacy? Trying to get a recording of one of your calls or need help with something? Let us know what you’re wondering and we’ll get you a response from one of our attorneys within 48 hours.
It should also be noted that according to the Electronic Communications Act, an operator providing a public communications network or a publicly available electronic communications service is obliged to retain so-called operational and location data for a period of six months.
Thus, electronic communications must be archived, including data on telephone calls, SMS messages, dead SIM cards, internet traffic, etc. Of course, all user movements on the Internet are archived (web pages viewed, emails…), and a lot can be gleaned from server logs. However, the content of the messages is not stored and forwarded. However, this is for the eyes of the Police, not the participants of the calls in question.
It is not specified how the handover of the log should take place. It is therefore possible to specify a uniform procedure for all, for example, listening at the headquarters. However, a creative interpretation of the GDPR would suggest that this should not be unnecessarily restrictive for the weaker party. It is therefore difficult to drag a client to, for example, the Crimea to a company’s foreign headquarters in order to listen to a business call.
The most common mistake is for people to phrase the request too broadly or send it to the wrong contact, allowing companies to ignore or delay it.
A company is not obliged to make a recording of a call, but if it does, in most cases it must make it available as personal data on request under the GDPR. The exceptions relate mainly to protecting the rights of others or legal disputes. In practice, however, companies often complicate or refuse the release, so it is important to make a properly worded request and, if necessary, contact the Data Protection Authority or a lawyer.
Not necessarily. He may choose another way, but he must not unduly burden you.
It shouldn’t – you have the right to a copy of the personal data as it is processed.
It must prove that it has actually deleted it in accordance with the retention rules.
Only if the company still keeps them.
Normally 30 days, exceptionally the deadline can be extended.
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Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
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