Call recording – is the company forced to provide a recording of the call?

Chapters of the article

• It can’t happen without your consent
• When can a call recording be used in court?
• Can you access the recording?
• In practice, it may not be so simple
• Archiving recordings
• Transmitting the recording

But what if you enter into a contract in this way or even get into a conflict with the company? Is the company obliged to provide you with your record?

Not without your consent

Your consent is required to process (make and keep) such a recording, which you give by continuing the call after being informed that it is being monitored. The exception to this is where the call has been recorded for the purpose of using the call to exercise or protect the rights or legitimate interests of others. However, you are unlikely to encounter this in a normal 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.

Recording calls without a contract

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.

Recordings of calls with a contract

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.

When can a recorded call be used in court?

Whether the call involved two business people or a business person 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 latter 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.

Can you access the record?

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.

In practice, it may not be so simple

If you suspect a failure to comply with the obligations in relation to your personal data rights, 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. In fact, the person who made the recording may always end up saying that the recording was lost or destroyed, even if he or she is 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.

Archiving records

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.

Transmission of the log

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.