Legallity of recording phone calls

An Ominous Cowherd

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Jul 9, 2008
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Hi All,

Quick question, what are the legal issues regarding recording phone calls? Do both parties have to be informed?

Or, if you could point me to the relevant legislation, that would be very helpful.


thanks

AC
 
I would guess that both parties should be informed and they should consent. But that is just a guess. (Otherwise it could be an invasion of privacy)?
 
I think every cellphone on the market can do this nowadays...
A recording is a recording imo.
 
The basic rule is that a party to the conversation can record the conversation. Someone else can record with the consent of one party to the conversation.

Legislation is the Regulation of Interception of Communications and Communication Related Information Act, 70 of 2002.

Relevant Sections

4 Interception of communication by party to communication
(1) Any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.
(2) Any law enforcement officer may intercept any communication if he or she is-
(a) a party to the communication; and
(b) satisfied that there are reasonable grounds to believe that the interception of a communication of another party to the communication is necessary on a ground referred to in section 16 (5) (a),
unless such communication is intercepted by such law enforcement officer for purposes of committing an offence.

5 Interception of communication with consent of party to communication
(1) Any person, other than a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception, unless such communication is intercepted by such person for purposes of committing an offence.
(2) Any law enforcement officer may intercept any communication if-
(a) one of the parties to the communication has given prior consent in writing to such interception;
(b) he or she is satisfied that there are reasonable grounds to believe that the party who has given consent as contemplated in paragraph (a) will-
(i) participate in a direct communication or that a direct communication will be directed to him or her; or
(ii) send or receive an indirect communication; and
(c) the interception of such direct or indirect communication is necessary on a ground referred to in section 16 (5) (a),
unless such communication is intercepted by such law enforcement officer for purposes of committing an offence.

6 Interception of indirect communication in connection with carrying on of business
(1) Any person may, in the course of the carrying on of any business, intercept any indirect communication-
(a) by means of which a transaction is entered into in the course of that business;
(b) which otherwise relates to that business; or
(c) which otherwise takes place in the course of the carrying on of that business,
in the course of its transmission over a telecommunication system.
(2) A person may only intercept an indirect communication in terms of subsection (1)-
(a) if such interception is effected by, or with the express or implied consent of, the system controller;
(b) for purposes of-
(i) monitoring or keeping a record of indirect communications-
(aa) in order to establish the existence of facts;
(bb) for purposes of investigating or detecting the unauthorised use of that telecommunication system; or
(cc) where that is undertaken in order to secure, or as an inherent part of, the effective operation of the system; or
(ii) monitoring indirect communications made to a confidential voice-telephony counselling or support service which is free of charge, other than the cost, if any, of making a telephone call, and operated in such a way that users thereof may remain anonymous if they so choose;
(c) if the telecommunication system concerned is provided for use wholly or partly in connection with that business; and
(d) if the system controller has made all reasonable efforts to inform in advance a person, who intends to use the telecommunication system concerned, that indirect communications transmitted by means thereof may be intercepted or if such indirect communication is intercepted with the express or implied consent of the person who uses that telecommunication system.

Hope that helps.
 
The basic rule is that a party to the conversation can record the conversation. Someone else can record with the consent of one party to the conversation.
...
Hope that helps.

Smeagol668, are you the devil's next door neighbour? :D

Thanks, that was what I suspected but I just wanted someone to confirm my assumptions.

And by the way, in this hypothetical situation, I am the one being recorded, not the one doing the recording.:)
 
from November 20 article on ComputingSA
(http://www.computingsa.co.za/knowledgecentres/networks/article.aspx?id=888992)

'... our local legislation permits a party to a telephone conversation to record that conversation (except, of course, for the purposes of committing an offence). Unlike some other countries, in SA there is no requirement that the other party be made aware that a recording is taking place. Many companies and call centres do warn users of this as a matter of courtesy, however, and hopefully it will become common practice among private users'.

Concise FAQ here: http://www.datavoice.co.za/content.asp?menuID=158&basemenuId=154
 
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Personal Experience

All I will add is that I have had transcripts of a phone call I recorded, without informing the other party involved, submitted in court documents, and allowed.

But I normally inform people that I will be recording the conversation. I start recording as the call starts, ask them to consent, if they decline I continue recording till I have instructed the person how to correspond in writing, then end the call.
 
Ok, on this note - my conversations are recorded and I have been informed about it by management, but no one asked my consent. Obviously it's for the purposes of ensuring that the business runs smoothly, but it's nasty and I don't like it!

Do I have a leg to stand on if I protest?
 
Ok, on this note - my conversations are recorded and I have been informed about it by management, but no one asked my consent. Obviously it's for the purposes of ensuring that the business runs smoothly, but it's nasty and I don't like it!

Do I have a leg to stand on if I protest?

no, the interception of communications legislation in South Africa says that only one party has to consent to the recording. So you do not really have a leg to stand on.
 
no, the interception of communications legislation in South Africa says that only one party has to consent to the recording. So you do not really have a leg to stand on.

Yeah I figure even Tards have figured this out already heheh.....;)
 
Ok, on this note - my conversations are recorded and I have been informed about it by management, but no one asked my consent. Obviously it's for the purposes of ensuring that the business runs smoothly, but it's nasty and I don't like it!

Do I have a leg to stand on if I protest?
I would check what my letter of appointment (or whatever other form of consent you gave) to see what the stated intent of the organisation is with recording. For "business to run smoothly" does not work for me. To me it seems that the law intends to ensure that recording is done for sound business or security reasons, not arbitrarily recording employees.
 
Bear in mind that since it's the boss's phone he probably has the right to record, but have a look at your letter of appointment.:D
 
What would happen if a person recorded a telephone call between himself and a consultant working for a particular bank and then posted the audio recording on a social media website?

During the phone the particular banks name is mentioned and the conversation isn't particularly friendly.

Naturally a number of comments are posted in response to the audio recording. These are also not particurlarly friendly.

If this particular bank were to hear of the posting of a audio recording of a telephone call between one of its clients and employees on a social media website in which derogatory statements are made about the employee and said bank, would it be possible for the bank to claim of damages on the ground of defamation against this person?
 
What would happen if a person recorded a telephone call between himself and a consultant working for a particular bank and then posted the audio recording on a social media website?

During the phone the particular banks name is mentioned and the conversation isn't particularly friendly.

Naturally a number of comments are posted in response to the audio recording. These are also not particurlarly friendly.

If this particular bank were to hear of the posting of a audio recording of a telephone call between one of its clients and employees on a social media website in which derogatory statements are made about the employee and said bank, would it be possible for the bank to claim of damages on the ground of defamation against this person?

Hypothetically speaking, of course.
 
What would happen if a person recorded a telephone call between himself and a consultant working for a particular bank and then posted the audio recording on a social media website?

During the phone the particular banks name is mentioned and the conversation isn't particularly friendly.

Naturally a number of comments are posted in response to the audio recording. These are also not particurlarly friendly.

If this particular bank were to hear of the posting of a audio recording of a telephone call between one of its clients and employees on a social media website in which derogatory statements are made about the employee and said bank, would it be possible for the bank to claim of damages on the ground of defamation against this person?

I suspect beep bank will beep you up. ;)
 
What would happen if a person recorded a telephone call between himself and a consultant working for a particular bank and then posted the audio recording on a social media website?

During the phone the particular banks name is mentioned and the conversation isn't particularly friendly.

Naturally a number of comments are posted in response to the audio recording. These are also not particurlarly friendly.

If this particular bank were to hear of the posting of a audio recording of a telephone call between one of its clients and employees on a social media website in which derogatory statements are made about the employee and said bank, would it be possible for the bank to claim of damages on the ground of defamation against this person?
Nothing wrong with naming and shaming a bank that's rude to their clients.
 
What would happen if a person recorded a telephone call between himself and a consultant working for a particular bank and then posted the audio recording on a social media website?

During the phone the particular banks name is mentioned and the conversation isn't particularly friendly.

Naturally a number of comments are posted in response to the audio recording. These are also not particurlarly friendly.

If this particular bank were to hear of the posting of a audio recording of a telephone call between one of its clients and employees on a social media website in which derogatory statements are made about the employee and said bank, would it be possible for the bank to claim of damages on the ground of defamation against this person?

If it their employee making the statements then you have not defamed them at all. Seems the law permits you to record the conversation, but publishing I'm not sure about. It wouldn't constitute defamation on your part as you have made no statements...
 
If you want to use that recording anywhere (especially in criminal proceedings.) you will have to have informed the consultant that the phone call is being recorded by you. If they were not informed, the phone call will not be allowed as evidence in criminal proceedings. As for civil proceedings, I am not quite sure.

They cannot do anything against you if you obtained the recording legally and posted it publicly. They can, however, get a court order against you and demand that it be removed if it is harming the company. You may end up paying their legal fees if they go this route.
 
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