The federal Telecommunications (Interception and Access) Act 1979 and State and Territory listening devices laws may both apply to monitoring or recording of telephone conversations.[1] The general rule is that the call may not be recorded. Section 7 of the Telecommunications (Interception and Access) Act 1979 prohibits intercepting a telephone call. "Interception" is defined in section 6, of which one element is that it is made "without the knowledge of the person making the communication". 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 organization must tell the other party at the beginning of the conversation so that it has the chance either to end the call, or to ask to be transferred to another line where monitoring or recording does not take place.[1]
Reasons organizations may monitor or record conversations may include:[1]
In the state of Queensland it is not illegal to record a telephone conversation by a party to the conversation.[2]
Canada
Organizations
In Canada, organizations subject to the Personal Information Protection and Electronic Documents Act[3] (PIPEDA) must comply with PIPEDA when recording calls.[4]
In order to comply with the PIPEDA, organizations should take the following steps when recording conversations:[4]
Czech Republic
Calls and conversations may be recorded by any active participant, with no requirement to make other parties aware of the recording. It is quite restricted how can you use such recording. The main idea is to use it only for protection of your own rights guaranteed by the law. The law dealing with this is NOZ, § 86 and § 88 .
Denmark
Calls and conversations may be recorded by any active participant, with no requirement to make other parties aware of the recording. But forwarding or playing calls considered private is illegal. The Denmark Data Protection Authority (DPA) ruled on April 11, 2019, that affirmative consent is required when companies record customer telephone calls.[7]
Finland
In the case of private persons, calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws, such as data protection (privacy) legislation, libel laws, laws governing trade and national secrets, and any agreements, such as non-disclosure agreements.[8]
Recording of calls by a company or an employer is subject to data protection legislation and, as a general rule, requires informing the participants prior to recording.[8]
Germany
Germany is a two-party consent jurisdiction—telephone recording without the consent of the two or, when applicable, more, parties is a criminal offence according to § 201 of the German Criminal Code[9]—violation of the confidentiality of the spoken word. Telephone tapping by authorities has to be approved by a judge. Telephone recording by a private citizen can be allowed in cases of self-defence, § 32 of the German Criminal Code,[10] or Necessity, § 34 of the German Criminal Code.[11] For discussion on lawful interception in Germany please see de:Telekommunikationsüberwachung (German language).
India
India does not have a specific law which addresses the recording of phone calls.It is not criminal for a person to record a phone call of which they are themselves a participant without consent from the other parties although the recorders may be liable to legal action if the other party considers the action to be a breach of their privacy. However, the recording of phone calls in which the recorders are not themselves participating is illegal and prohibited by Article 21 of the Indian Constitution unless the person recording has prior consent from the participants of the call.[12][13][14]
The Central Government or State Government is empowered to order interception of messages per 12, section 5 of Indian Telegraph Act 1885.[15] Rule 419 and 419A sets out.
Telephone tapping is permitted based on court order only and such permission is granted only if it is required to prevent a major offense involving national security or to gather intelligence on anti-national or terrorist activities.
Though economic offenses/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual.
As per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls.
The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation.
Italy
According to the Supreme Court of Cassation, recorded conversations are legal and can be used as evidence in court, even if the other party is unaware of being recorded, provided that the recording party takes part of the conversation.[16]
Ireland
Recording calls is legal and recordings can be used as evidence in court, providing the person recording is a participant to the conversation, or has consent from at least one participant from the conversation.[17]
Latvia
Calls and conversations by private persons may be recorded by any active participant. There is no requirement in laws to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.[18]
Netherlands
Article 139a of Dutch Criminal law states that "He who deliberately uses a technical aid to record a conversation that is being held in a house, a closed room or a courtyard, without being a participant in the conversation and without any instructions from such a participant, is punishable with imprisonment of not more than six months or a fine of the fourth category”.[19] In other words, as long as one is themselves a participant, they are allowed to (discreetly) record the entirety of the conversation. Furthermore, while not explicitly stated, the European General Data Protection Regulation applies to any processing of private conversations that is not ’strictly personal’. Any publication, without explicit consent, is therefore forbidden.
New Zealand
Recording of phone calls by private persons falls under interception-related provisions of the Crimes Act 1961, which has a general prohibition on the use of interception devices. An exception is made for when the person intercepting the call is a party to the conversation. There is no requirement that both parties be aware of the interception.[20]
The recording of telephone calls however do fall under the purview of Privacy Act. In general, recording of telephone calls related to personal affairs does not contravene Privacy Act, whereas recording for any other purposes would. In particular, it is usually considered unfair to record someone without telling them.[21] It can still be legal to record without consent if public interest in the content of the recording is strong enough to outweigh the privacy interest or confidentiality interest.[22]
Poland
According to the Polish Penal Code (art. 267), call recording is legal for a private person only when recording person is one of the participants.[23] No consent from the other side is needed then. Similarly to Latvia, the use of recordings, depending on their content, may be subject to various laws.[24][25]
Romania
Intercepting communications falls under the provisions of the Penal Code and, in the case of electronic communications, under the Telecommunications Act (506/2004). The recording of a conversation by a private member to that conversation is specifically permitted. Nevertheless, while such recordings are legal, making use of them may fall subject to further civil or criminal law. Their admissibility as evidence also depends on the circumstances.[26]
Sweden
According to the Swedish Penal Code (Brottsbalken) Chapter 4, 8–9 §§, it is illegal to make unauthorized recordings of telephone conversations.[27] A court can grant permission for law enforcement agencies to tap telephone lines. Also, anyone participating in the telephone call may record the conversation — at least one party in the call must be aware of the recording being made. A recording is always admissible as evidence in a court, even if obtained in an illegal manner.
Taiwan
According to Article 29 of The Communication Security and Surveillance Act of 1999, call recording is legal if the person conducting the surveillance is one of the parties in communication, or has obtained consent from one of the parties in communication, and the conduct is not for illegal purpose.
Turkey
In Turkey, there are strict conditions for both the act of surveillance as well as the storage of that data, but as long as it is clear enough of what exactly is being used for as well as implementation procedures were legal by authorities, it is deemed as permissible. The subject at hand was suspected for not related criminal investigation therefore the telephone tapping was justified.
United Kingdom
England and Wales
The Regulation of Investigatory Powers Act 2000 in general prohibits interception of communications by a third party, with exceptions related to government agencies. A recording made by one party to a phone call or e-mail without notifying the other is not prohibited provided that the recording is for their own use; recording without notification is prohibited where some of the contents of the communication—a phone conversation or an e-mail—are made available to a third party. Businesses may record with the knowledge of their employees, but without notifying the other party, to: