Legallity of recording phone calls

You do not have to inform at all.

The law says only one party to the conversation needs to be informed and give consent. And that's you.
 
You do not have to inform at all.

The law says only one party to the conversation needs to be informed and give consent. And that's you.

This is correct, for your own use. However the the question was more related to :

..... and then posted the audio recording on a social media website?

I suspect the bank will spend millions defending their name/brand. Once you make the recording public you are then potentially causing defamation to the bank and their products.
 
Last edited:
This is correct, for your own use. However the the question was more related to :



I suspect the bank will spend millions defending their name/brand. Once you make the recording public you are then potentially causing defamation to the bank and their products.

Defamation is false information, posting something that is totally factual is fine as far as I know(I'm not a lawyer)

This is how investigative reporting works and how carte blanche and news sites are able to post stories.
 
Truth is the ultimate defense to defamation and it is legal to record a call without notification but two small things (-and IANAL):
Assume I have an email from somebody prominent saying that he really enjoyed wearing something involving wearing a dress and I take that bit and stick up an article that this person is a cross dresser and use photos of a prominent cross dresser whereas the full contents of the email sets the context that it refers to a pantomime truth would not be a defense because I deliberately masked the truth by selective quoting. An action is unlikely to succeed for other reasons and so on particularly because today's newspaper is tomorrow's toilet paper BUT imagine if it was an audio clip - could the public be more easily misled.
The concept here is a sound bite and it is particularly scoffed at by our courts - the SCA practice directions for media in the court deals with sound bites. My point is don't assume that because the act of recording is not illegal the re-publication particularly in a selective manner won't find you in hot water. Investigative journalists can use the one way requirement but just remember they are ready to defend defamation regardless of the recording or not and they are supposed to be more careful about selective sound bites.

2) the fact that it isn't Illegal to record does not mean the recording will be admissible in court. The burdens to prove authenticity can be a bitch and if somebody admits to a criminal act on the phone that is recorded the scope to get that admitted, authenticated and not found to be entrapment makes the assertion that the recording is unusable a broadly acceptable one.
 
Often you get a call and the caller would say "this call is recorded for quality purposes", would that mean they cannot use that against you down the line as it was recorded for "quality purposes" only and what is the definition of "quality purposes" in this scenario?
 
In South Africa the interception, recording and monitoring of communications is governed by the Regulation of Interception of Communications and Provisions of Communications-Related Information Act, 70 of 2002 (“RICA”). In principle RICA provides that no person may intentionally intercept or attempt to intercept any communication in the course of its transmission in South Africa. This prohibition of interception applies to all persons, private or public, but is subject to a number of exceptions detailed in sections 3 to 11 of RICA.

The primary exceptions to the general prohibition are the following:

· Where the intercepting party is a party to the communication being intercepted (so-called “participant monitoring” or “participant intercepting”). Effectively, therefore, where meetings are concerned, the person making a recording of a meeting must be participating in the meeting;
· Where one of the parties to the communication has provided prior written consent to the interception. Typically, this refers to the employer – employee relationship, where as a condition of employment, the employee consent to his communication being intercepted. Except for the said instance, it is almost impossible to conceive of other instances where a party would voluntarily consent, in writing, to his communications being intercepted.

RICA only came into effect in September 2005. Being relatively new, there are few cases regarding its application and interpretation having reached the courts.

There is, however, a plethora of cases which have been decided in terms of RICA’s predecessor (the repealed Interception and Monitoring Prohibition Act 127 of 1992) which deals with the circumstances in which one of the participants to a conversation monitors the conversation. These cases should carry weight when it comes to interpreting and applying RICA’s provisions on the interception of communications, which are less onerous than those of the 1992 Act.

In S v Kidson 1999 (1) SACR 338 (W), for example, an accomplice to a murder was given a voice-activated tape recorder by the police which he carried in his jacket pocket, using it to record a conversation with the accused, detailing the planning and execution of her husband’s murder. In determining the admissibility of the recordings, the court distinguished between ‘third party monitoring’ (a conversation “by” a person), and participant monitoring (a conversation “with” a person), holding that information voluntarily imparted in a two-party conversation is not “confidential information” in relation to the other party to the conversation, and is thus admissible as evidence.

In addition, the court confirmed that the interception of a telephone call to which one is a party does not constitute “third party monitoring” as it would be flawed to say that one is eavesdropping on one’s own conversation. Examples used by the court to illustrate the absurdity of assigning third party status to the interception of phone calls included intercepting a telephone call from a kidnapper demanding a ransom, or intercepting calls from a perverted caller.

The overriding principle in the court’s decision was that the party to the conversation had a legitimate interest in intercepting a conversation or meeting, and did not intend using the recording in order to commit an offence.

What about juristic persons?

It has been contended that juristic persons (typically companies) and other organisations do not have a right to privacy due to the human nature inherent in this right. However, in Financial Mail (Pty) Ltd v Sage Holdings Ltd, the Appeal court confirmed that although a corporation has “no feeling to outrage or offend” , it is theoretically entitled to protection from invasion of its right to privacy and its right to identity.

In this matter, an (unauthorised) “eavesdropping” or tapping device had been installed in the basement of Sage’s premises, enabling conversations on the telephone line to be intercepted and tape-recorded. The appellant, the Financial Mail, who was in no way party to the making of the tape recordings, and did not solicit them, wanted to use some of the information contained on the tapes in a news article.

The court held that the tape recorded information was sensitive and confidential, as it concerned Sage’s internal affairs and delicate business negotiations, and that the publication by the appellant of those parts of the article derived from the tape recordings would infringe Sage’s and corporate executives’ rights to privacy, thus rendering it unlawful.

This case is a working example of a case in which the parties to a conversation have not provided prior written consent to the interception, thus rendering the use of the recording unlawful, as the parties intending to use the tape recordings were not a party to the conversation. In addition, the case lays bare the fact that it is almost always illegal to record a conversation to which one is not a party, in respect of which one does not have consent to tape, and which one would not naturally overhear.

While participant monitoring is, for all intents and purposes, legally valid, it should be noted that the admissibility and authenticity of tape recordings and transcripts are almost always disputed. A legitimate interest for wishing to use recordings should go a long way in advancing a call for having such evidence admitted. However, one should be wary of judicial boundaries and be careful to not transgress these, as our courts would only allow the infringement of a person or entity’s right to privacy in extraordinary or exceptional circumstances.


http://www.justanswer.com/south-afr...rica-record-meeting-people.html#ixzz2DOiIJS7D
 
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.

Could you supply us with the source of your post please? I'd like to read up more on it. Thanks.
 
Back
Top