| To deter and detect market abuse, the Financial | | | | clients' right to privacy. An organization is allowed to |
| Services Authority ("FSA") in its new rules - the | | | | record phone calls as long as it properly notifies clients |
| Conduct of Business Sourcebook (Recording of | | | | and employees that calls are being recorded and that |
| Telephone Conversations and Electronic | | | | you are recording them for the appropriate purpose |
| Communications) Instrument 2008, which comes into | | | | such as training. |
| force on the 6th of March 2009, requires certain | | | | In general, clients have very limited rights in these |
| employers in the sector to record telephone | | | | telephone calls. Clients do not have to be notified that |
| conversations and retain electronic communications | | | | the call is being recorded if an organization only plans |
| made in the UK by employees to clients. | | | | to use the phone calls internally (unless required by law |
| Exemptions | | | | enforcement or the courts) and for a specific set of |
| There are a few exceptions such as mobile phone | | | | purposes: to provide evidence of a business |
| conversations and communications (except emails) | | | | transaction, to ensure that a business complies with |
| made with, sent from or received on a mobile | | | | regulatory procedures, to see that quality standards |
| telephone or other mobile handheld electronic | | | | are being met in the interests of national security, to |
| communication device. However, this exemption | | | | prevent or detect crime or to secure the effective |
| stands to be reviewed within 18 months. | | | | operation of a telecom system. If an organization |
| Retention of the data | | | | wants to record for any purpose outside of this then |
| In general, firms must retain recordings for 6 months. | | | | they will have to notify clients. |
| However the FSA has added the caveat that firms | | | | Employee rights |
| may be required to keep the recordings for longer | | | | The law gives much greater rights to employees of |
| than six months; occasionally requiring firms to keep | | | | the organization. The employer must not monitor or |
| recordings that may be of interest as part of its | | | | record an employee's telephone calls without consent |
| investigatory and enforcement work. | | | | and even with consent an employer can only monitor |
| The recordings must be stored in a medium that | | | | or record employee communications for the following |
| allows the storage of the information in a readily | | | | purposes: establishing the facts of commercial |
| accessible way by the FSA. Corrections, amendments, | | | | transactions or communications, complying with |
| and contents of the records prior to such corrections | | | | regulatory or self-regulatory procedures, ensuring |
| and amendments must be easily ascertainable and it | | | | appropriate staff standards (i.e. quality control and |
| must not be possible to otherwise manipulate or alter | | | | training), national security, preventing or detecting crime, |
| the records. | | | | investigating or detecting the unauthorized use of any |
| Other applicable laws | | | | telecommunication system, or securing the effective |
| The FSA regulation works in conjunction with other | | | | operation of such system. |
| laws which come from a variety of sources including | | | | Employers have the legal authority to monitor but not |
| the Telecommunications (Lawful Business Practice) | | | | record employee communications without consent only |
| (Interception of Communications) Regulations (2000), | | | | for very narrow purposes but in practice it is |
| the Data Protection Act (1998) and the Regulation of | | | | extremely difficult to justify this type of monitoring. |
| Investigatory Powers Act (2000). | | | | Additionally, the employer must disregard any |
| Recording and monitoring outside of FSA purposes | | | | information obtained through covert monitoring which |
| If an organization plans to monitor or record telephone | | | | does not relate to a criminal activity or to malpractice |
| calls apart from the ones required under the FSA | | | | lawfully. Employees have a right to privacy and a |
| scheme, it should be particularly careful not to breach | | | | certain degree of trust in the workplace so courts |
| their employees' or clients' rights to privacy. The laws in | | | | rarely find that covert monitoring is justified especially |
| this regard aim to achieve a balance between the | | | | when it results in job termination or other disciplinary |
| employer's right to know and the employees' and | | | | measures. |