Blackmail - what do you do?

[loafer123]

Every financial institution habitually records calls to provide evidence of instructions and staff do not disclose beforehand.

[JustinP1]

Breadvan72 said:

You have missed out the relevant bit. You have to take reasonable steps to inform the punter of the recording. Its plainly set out in the Regs.

I've scanned down it, could you be more specific on the exact section/part/chapter?

However, this would mean that both of those solicitors have missed that point too.

Can you see why that runs against the interpretation of those solicitors?

For example here:

"(i) the customer consents to the recording (usually after being notified by a recorded message) and the business has reasonable grounds for believing that the customer has consented (i.e. the customer has communicated its acceptance or implied acceptance by continuing with the call; and (ii) in the absence of consent, it is authorised by the Lawful Business Regulations (see below)"


If you get consent, for example a recorded message that the call is recorded, the customer continues his call afterwards, he has consented.

The information above from those two sources refers to where there is no consent attained, and gives examples for situation where no consent would be necessary.

Edited by JustinP1 on Friday 28th November 14:35

[simonrockman]

Breadvan72 said:

The problem with that is that you are supposed to tell people that they are being recorded, as otherwise you can get into a legal pinch.

I've just checked in McNae's Law for journalists. You don't have to tell someone you are recording them either legally or under the editors code of practice.

You do, under the code of practice, have to say you are a journalist.

This is UK law, in the US you do have to tell people that they are being recorded and that's where the common misconception that you have to tell people comes from. FWIW I regularly record calls as I want to make sure I get my quotes right and I don't know shorthand. I find it very annoying that there are no call recording apps for phones, the only way to do it is to use a service where the call is recorded at the switch.

Simon

[anonymous-user]

Reg 3(1)(c). Reasonable efforts to inform.

Interception includes recording a call.

[JustinP1]

Breadvan72 said:

Reg 3(1)(c). Reasonable efforts to inform.

Interception includes recording a call.

I think what the solicitors are getting at is the LBP regs came afterwards and expanded on the restrictive nature of RIPA.

Here's another example, this is pretty unambiguous:

Clarks Legal LLP said:

ADVISING CALLERS THAT CALLS ARE BEING MONITORED/RECORDED.

Businesses do not have to tell callers that they are monitoring/recording telephone calls into the business if they are doing so for one of the reasons set out in the LBP Regulations (see above). You do have to advise employees that their calls are being monitored. If you are relying on other reasons you need to notify callers.

If you wanted to record/monitor calls for any other reason (such as training purposes or market research) and you want the opportunity to use the recorded calls in training sessions in front of third parties you need to inform the caller that their call is being monitored/recorded so that they have the opportunity to consent by continuing with the call or hanging up.

That's from here: http://www.clarkslegal.com/PrintArticle/341

Please don't get me wrong, you know for me 'every day is a school day'. Just before I lambast a professional for giving me duff advice, I obviously need to be sure of myself.

From that quote there, if businesses did need to take 'reasonable efforts to inform', then I don't know why these solicitors don't say exactly that, and indeed they say 'Businesses do not have to tell callers..."

[Hol]

I cannot see it metioned, but...

The delivered £800 of printed articles - can they still actually be used by the client?

Or, have they messed up and the money was wasted?

[schmunk]

Breadvan72 said:

Reg 3(1)(c). Reasonable efforts to inform.

Interception includes recording a call.

I agree that a simple reading of the Reg suggests that the external caller needs to be informed of the recording, but all the guidance and interpretation I've seen (including the reported opinions given by others in this thread) suggest that if the recording device is on the internal phone system, only internal users (i.e. employees) need to be informed. This seems to be on the basis that the customer is thus not classed as a 'person who may use the telecommunication system'.

edit: That said, the DPA probably over-rides this in any case, meaning that the external caller still needs to give consent in most circumstances.

p.s. as you will realise, IANAL, although I do have access to Lexis Library...

Edited by schmunk on Friday 28th November 16:54

Edited by schmunk on Friday 28th November 17:00

[Hol]

loafer123 said:

Every financial institution habitually records calls to provide evidence of instructions and staff do not disclose beforehand.

U have some examples??

[loafer123]

Hol said:

loafer123 said:

Every financial institution habitually records calls to provide evidence of instructions and staff do not disclose beforehand.

U have some examples??

What do you want - a list of banks?

Every trading floor has recorded calls and most commercial lending floors do too as a consequence.

[JustinP1]

Hol said:

I cannot see it metioned, but...

The delivered £800 of printed articles - can they still actually be used by the client?

Or, have they messed up and the money was wasted?

Both.

Goods are 95% ready. Only thing waiting on is a small amount of copy from the client to finish.

Client is not sending said copy, as they don't want the goods delivered as they will not sell enough to cover the cost. That's due to them a) Messing up, and b) Messing around for so long, and not supplying said copy despite numerous times of asking.

[anonymous-user]

The Act trumps the Regulations and both trump Guidance and law firm websites.

[Hol]

loafer123 said:

What do you want - a list of banks?

Every trading floor has recorded calls and most commercial lending floors do too as a consequence.

Terms of business would cover that somewhere in the legals,??

[twokcc]

Both.

Goods are 95% ready. Only thing waiting on is a small amount of copy from the client to finish.

Client is not sending said copy, as they don't want the goods delivered as they will not sell enough to cover the cost. That's due to them a) Messing up, and b) Messing around for so long, and not supplying said copy despite numerous times of asking.
[/quote]

IMO ..
Can't see this having a good outcome and how much time and effort to you want to spend on 'proving' that you are legally right. Rather than getting embroiled in a dispute with someone who may be able to do damage to your company reputation. The other party is probably just as keen as you are to resolve this matter- would't the best action be to meet him face to face. All companies have disputes of some kind - the thing that makes the really successful ones stand out is how complaints are handled. Be prepared to take a knock say a 50/50 settlement,deal on next order(s)etc. Go in with intention of coming away with an agreement not threatening with blackmail allegations, recordings etc. If you cant get an agreement you can still ultimately take legal action and the fact that you have attempted to reasonably resolve it may help your case.
It has to be your judgement hope it works out OK

[ging84]

Breadvan72 said:

Reg 3(1)(c). Reasonable efforts to inform.

Interception includes recording a call.

I don't believe this is relevant
external callers are unlikely to be classed as users of the system in question, they will be using their own system with their own system controller at their end.

[anonymous-user]

How do you call a system without using it?

[loafer123]

http://www.ofcom.org.uk/static/archive/oftel/consu...

You can record calls according to Oftel.

[Red Devil]

Breadvan72 said:

Ging84, your assumption is incorrect. This subject is well within my practice area. See section 2 of the Act and paragraph 3 of the Regulations. Stuff on websites is no substitute for the words of the legislation.

I could be wrong but I don't see anything in the Ofcom link which is incompatible with the Regulations. It clearly states that you can't divulge the content of the recording or e-mail to a third party without the consent of the sender (which is unlikely to be forthcoming). You're not prohibited from making/keeping the record per se. The upshot is that the OP can't forward any of it as evidence to the Governors, or whoever else he wants to complain to. AIUI that is what he is contemplating doing which makes the prohibition the big elephant taking up all the available space.

[loafer123]

Red Devil said:

Breadvan72 said:

Ging84, your assumption is incorrect. This subject is well within my practice area. See section 2 of the Act and paragraph 3 of the Regulations. Stuff on websites is no substitute for the words of the legislation.

I could be wrong but I don't see anything in the Oftel link which is incompatible with the Regulations. It clearly states that you can't divulge the content of the recording or e-mail to a third party without the consent of the sender (which is unlikely to be forthcoming). You're not prohibited from making/keeping the record per se. The upshot is that the OP can't forward any of it as evidence to the Governors, or whoever else he wants to complain to.

I presume that if both parties to a call are acting in a professional capacity, then the management of both organisations are not regarded as third parties.

[singlecoil]

loafer123 said:

Red Devil said:

Breadvan72 said:

Ging84, your assumption is incorrect. This subject is well within my practice area. See section 2 of the Act and paragraph 3 of the Regulations. Stuff on websites is no substitute for the words of the legislation.

I could be wrong but I don't see anything in the Oftel link which is incompatible with the Regulations. It clearly states that you can't divulge the content of the recording or e-mail to a third party without the consent of the sender (which is unlikely to be forthcoming). You're not prohibited from making/keeping the record per se. The upshot is that the OP can't forward any of it as evidence to the Governors, or whoever else he wants to complain to.

I presume that if both parties to a call are acting in a professional capacity, then the management of both organisations are not regarded as third parties.

That would seem to make sense.

[ging84]

Breadvan72 said:

How do you call a system without using it?

Via a public telephone exchange
Would you claim to be using my phone by calling it?


The ico guidance here agrees with me
http://ico.org.uk/for_organisations/data_protectio...
Explanatory note 8 states
Workers, including temporary or contract staff, will be users of the system but outside callers or senders of e-mail will not be