On 24th October, the Government
introduces new regulations that govern the way in which businesses can record or
monitor e-mails and phone calls. The Telecommunications (Lawful Business
Practice) (Interception of Communications) Regulations 2000, set out a number of
circumstances in which it would be lawful for an employer to monitor, intercept
and record communications without the consent of the sender, recipient or
The main circumstances highlighted
in the Regulations are:
to establish the existence of
facts relevant to the business e.g. to keep records of transactions and other
communications in cases where it is necessary or desirable to know the specific
facts of the conversation.
to ascertain compliance with regulatory or self
regulatory rules or guidance e.g. monitoring as a means to check that the
business is complying with regulatory or self-regulatory rules or guidelines.
to ascertain or demonstrate standards which are or ought to be achieved by
persons using the telecommunications system in the course of their duties e.g.
monitoring for purposes of quality control or staff training.
to prevent or
detect crime e.g. monitoring or recording to detect fraud or corruption. - to
investigate or detect the unauthorised use of their systems. e.g. to ensure that
employees do not breach company rules on the use of the system
to ensure the
effective operation of the system - for example monitoring for viruses.
In addition to the above, the
Regulations allow monitoring (but not recording) without consent:
The requirement to inform staff
If a business intends to make
interceptions without consent for one of the allowed purposes, they are required
to make all reasonable efforts to inform every person who may use their telecoms
system that communications may be intercepted. In other words, employers should
update staff contracts or handbooks with a clause stating that interceptions
could take place.
If a business wants to make an
interception outside the allowable reasons, they need to gain the consent of the
sender and intended recipient of the communication. An example of this could be
an interception for purposes such as marketing or market research. This could be
done in a number of ways:
the business could insert a clause
in staff contracts by which employees consent to calls and e-mails being
monitored or recorded
the call operator could ask outsiders at the start of a
call whether they consented to their call being monitored or recorded
business could begin calls with a recorded message stating that calls might be
monitored or recorded unless outsiders requested otherwise.
If a business makes an interception
without the correct legal authority, the sender or the recipient of the
communication will be able to obtain an injunction or, if they can show that
they suffered a loss because of the interception, sue for damages.