Ask LH: Can I Record Calls If The Company Is Recording Me?

Hi Lifehacker, There have been a lot of stories recently from the US about customers recording calls to demonstrate how bad customer service can be. I'm wondering if it's legal to do that in Australia.

It seems any large business you call uses the "your call may be recorded for training and quality assurance purposes" line. Having heard that line, can we also record the calls ourselves, or do we need to ask them for consent too?

Thanks Recording Now

Picture: Getty Images

Dear RN,

Both the law and simple courtesy produce the same answer here: if you want to record a customer service call, then you should let the person involved know. That's the case even if you've been told that your call may be recorded. While the staff member knows that their employer is (potentially) recording the call, they don't know that you are. And just as you have the option of asking to not have the call recorded, so should they.

The Australian Information Commissioner has a useful summary of the current law in this area.

Monitoring (listening in to), or recording of telephone conversations, is a matter tightly controlled by law. The federal Telecommunications (Interception and Access) Act 1979 and State and Territory listening devices laws may both apply to this activity. The general rule is that the call may not be recorded. There are exceptions to these rules in very limited circumstances including where a warrant applies. If a call is to be recorded or monitored, an organisation must tell you at the beginning of the conversation so that you have the chance either to end the call, or to ask to be transferred to another line where monitoring or recording does not take place (if this is available).

I'll admit, the chances of you actually getting into trouble for doing this are slight -- though if you end up putting the call on YouTube or SoundCloud, issues might arise. It might feel weird to have to immediately explain that you're recording the call, and if you've been waiting on the line for a while, the risk of being transferred might weight on your mind too. But if you're determined to record calls, do the right thing and ask first.

Cheers Lifehacker

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Comments

    Correction: "I’ll admit, the chances of you actually getting into trouble for doing this are slight — though if you" want to _actually use_ that recording for any reason, you can't.

    In short, companies don't say “your call may be recorded for training and quality assurance purposes” just to be polite, they do it because it is the law.

    No, you do not have to ask for consent, Yes, you can record the call.

    Just say the following as soon as a customer service rep picks up the line: "Your call may be recorded for compliance purposes. Hello, this is [Name], I'm calling for [reason]”

    Note, this doesn't necessarily give you the right to post it to youtube... but it does give you the right to use it in court.

      As far as I'm aware, most companies won't actually comply with that. The company I work for requires I hang up on calls that I've been told are being recorded by the other party. The key thing is that our recording system allows us to ensure the security of sensitive data (whether that be the companies or yours), while we can't be assured the same of the callers recording.
      Honestly, I think a better option would be to ask the person you're speaking to if you can get access to a copy of their recording, rather than recording things yourself.

    What I want to know is, would it stand up legally to claim the statement “your call may be recorded" was understood to be providing consent? (ie. "you may record the call")

    It seems like a legitimate interpretation of the words. Even though I know it's not the intended one, would I have any chance of getting it to fly in court?

      Again, the issue is that you aren't giving them the chance to opt out.

        The word 'may' is the problem here.
        In the first definition it is stating 'may' as in: possibly be recorded.
        In the second definition @colbyhanks is referring to 'may' as a form of permission.

        A barrister (lawyer is an Americanism) should have a lot of fun with this in court.

          Lawyer isn't an Americanism, it's just an ism. A lawyer is someone who is learned in the law and practising law. This usage is ubiquitous.

          You're thinking of Attorney (at Law), which IS used in certain jurisdictions (such as USA) but not in Australia or UK (as of the 19th Century).

            I replied - but server errors....So I'll try to rehash.

            Attorney at Law is not an expression used in Australia.
            Australian media made a clear distinction between Barristers and Solicitors and never spoke of 'Lawyers' unless referring to American legal issues. In recent years, the quality of the journalism has fallen so we see Lawyer becoming commonly used (blergh).

            The Brits use Barrister and Solicitor just as we do (we inherited their system so it makes sense).

            In the same way 'apartment' was not part of Australian language but now is, Lawyer has crept in and it's a crappy term in the same way that broadband is a crappy term for describing internet speeds.

            Semantics really but hey - words are the only tools we have for describing our ideas so it's important we share a common understanding :)

              I myself said that Attorney at Law is not used in Australia.

              The recency of the term has no baring on the quality so in the absence of any knowledge on when it became 'common' I'll accept that you are factual. The matter remains that it is so ubiquitous that it is an ism, rather than an americanism (and I'm not sure that geographic spread is so accurate).

              However you have now presented a more interesting point. I disagree that it is a crappy term. It's a very useful term because it describes a certain category of individuals. Solicitor and Barrister being further subcategories (in operation rather than in terms of actual individuals as many more 'legal practitioners' operate as both these days).

              I'm all for semantics. I think words are very important and that precise expression is a virtue. I just disagree that lawyer is some deviant term that somehow destroys understanding simply because it is 'in non professional circles' more commonly used than legal practitioner.

              Caveat: To the extent that it prevents the use of barrister and solicitor and thus dampens public understanding of those roles, that is a gross negative. I'm not sure that gross negative would outweigh the gross positive of the convenience of the term (given that legal practitioner would be the alternative and is a bit mouthy).

              Last edited 04/09/14 3:24 pm

      @colbyhanks - you can assume that the statement "your call may be recorded" does stand up in court - or to put it another way, it's not a battle you're likely to win.

      Why?
      1. Because all the major telco's use that wording, and you can bet they've run it past a bunch of high-priced lawyers to come up with it.
      2. Because the other side is likely to have more money than you and will want to make damn-sure they can stand behind that wording to enforce contracts recorded with it.

      However - the statement "your call may be recorded for training purposes" might not be enough.

      "quality assurance" and "verification" can mean 'making sure we can prove you said what you said' -- but "training" might give you an argument that the evidence is inadmissible on the grounds that you didn't consent to it being used for any other purposes than training. ... still, if you find yourself in a situation where you'd try to run that line, I hope you're cashed up and ready for some hefty legal fees.

    Most of them give you permission while you are still on hold. They say that it may be recorded and leave it up to you.

    I love the recent Comcast recording where they were trying to charge him for all this stuff. He kept calling them out on it etc and they were like "Sorry, there is nothing we can do". When he brought up that he had recordings, they suddenly were happy to comply. Only if they get caught.

    edit - someone above just made the same point.

    Last edited 22/08/14 9:28 am

    I believe the information from the Australian Information Commissioner cited in the article is being misinterpreted. They are listing what government or businesses can or cannot do, not what a private individual can or cannot do.

    The OIC is referring to the Privacy Act of 1998 which does not cover private individuals. Interestingly it also does not cover the media or political parties (though they are still restricted by the rules below regarding disclosing legally recorded info to third parties).

    More info here http://www.oaic.gov.au/privacy/who-is-covered-by-privacy

    In QLD and the ACT, and probably elsewhere I just don't have information on hand for the rest of Australia, it is legal to record a phone conversation (and possibly use that recording later in legal proceedings) as long as you are a party to the call and you do not physically attach any recording devices to the phone or line (I don't know how this requirement to not "attach" anything to the phone would apply to recording via phone recording software on a smartphone)

    In these circumstances you are not required to disclose to the other party that you are recording the call.

    From the QLD legal aid website (I have edited out parts not relevant to this discussion)

    http://www.legalaid.qld.gov.au/legalinformation/livinginthecommunity/Yourrights/Pages/Privacy.aspx

    When can I record a telephone conversation?
    Bugging or intercepting a telephone conversation is illegal. It is not illegal to simply record a telephone conversation if you are a party to the conversation as long as you do not attach anything to or in the phone or its connections. Appropriately obtained recordings can be accepted by a court as evidence.

    When can I tell somebody about a conversation or publish a conversation that was legally recorded?
    If you were involved in a conversation that you legally recorded, it is illegal to communicate the conversation or publish it if you do not have the permission of the other people involved in the conversation. Penalties apply. You may be able to use it as evidence in court proceedings. It is illegal to publish or communicate a private conversation that was listened to or recorded illegally. Penalties apply. Illegally obtained recordings cannot be used in evidence.

    Last edited 22/08/14 11:17 am

      Laws vary from state to state. Note also that even in this case, you couldn't publish the call online without seeking permission (which was how the question started).

        I agree that laws vary from state to state, I even alluded to that in my response. I also agree that a recorded call could not be published online (not until it had been admitted as evidence in court anyway), which is something I also listed in my response.

        My point, however, is that you are citing an act that does not apply to individuals to advise on how an individual should behave.

        Last edited 22/08/14 11:29 am

          I think Lifehacker really has to stop doing these legal questions.

          They didn't even add the usual 'we aren't laywers, go ask a lawyer to be certain' disclaimer.

          OH THE HUMANITY!

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