Are RECORDED CALLS admissible in court? (Europe)

Many businesses capture conversations to gather proof for solving disputes, but it’s essential to realize that recorded calls aren’t always allowed in court – and today we will explore the reasons.

Naturally, whether call recordings will be accepted in court will rely on several factors: the nation where the case occurs, the trustworthiness of the recording, and the legality of consent, among others.

Legal ≠ Acceptable

One of the first points to remember when grasping the nature of recorded calls is that legality does not mean acceptance. In simpler terms, just because a conversation was recorded in line with legal rules doesn’t guarantee that the recorded call is valid.

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Recorded calls must also have reliable proof: Besides legality, you must provide evidence that the recorded conversation is trustworthy and valid. Although these rules may change by state and country, in most situations you should be able to:.

1. Prove that the voice on the tape actually belongs to the person you claim to be.
2. Demonstrate that the software or hardware used is reliable for making accurate recordings;
3. Demonstrate that the tape is a true and accurate representation of the interaction and that no important context is lost.
4. Authenticate that the registration has not been altered or modified.

Additionally, we run into the issue of hearsay: in some cases, using someone’s prior and misplaced statements in recorded calls could be problematic in court and could make the recording inadmissible.

Calls recorded in Europe

This year, call recording across the European Union is facing some major changes following the implementation of MiFID II in January and GDPR in May.

The General Data Protection Regulation (GDPR)

The new regulation, which comes into force next month, aims to protect the data of European citizens in the 28 member states.

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The General Data Protection Regulation took 4 years to prepare and was designed to replace the already outdated Data Protection Law adopted in 1995. According to the Data Protection Law, call recording is acceptable and justified as long as the necessary protective measures are taken and the parties are informed of the recording.

However, under the GDPR, the rights of the individual will prevail over the rights of the organization. In this case, companies wishing to record calls will have to actively justify the legality by meeting one of the following six conditions:

1. The people involved in the call have given consent to be recorded;
2. Registration is necessary for the fulfillment of a contract;
3. Registration is necessary to comply with a legal requirement;
4. Registration is necessary to protect the interests of one or more participants;
5. Registration is in the public interest or necessary for the exercise of public authority;
6. Recording is in the legitimate interests of the recorder, unless such interests override the interests of the call participants.

Some of these conditions apply to specific sectors: for example, condition number 3 refers to firms in the financial services sector, which are required by the FCA to record all calls that may lead to a transaction. Number five applies to emergency and security services, where recorded conversations are used in the interests of public protection.

Markets in Financial Instruments Directive (MiFID II)

In January 2018, the second revision of the European MiFID II Directive came into force, implementing a series of rules to keep markets transparent and safe for investors.

Under MiFID II, firms will be required to provide full transparency on transaction and trade reports, including the requirement to record telephone and electronic communications. In fact, companies in the financial services sector will have to meet the following requirements:

1. Record all conversations that could lead to a transaction.
2. Inform the customer that the conversation is being recorded.
3. Securely archive all recorded conversations for a minimum period of 5 years (in some cases, 7 years).
4. Archive recorded conversations so they are easily retrievable upon request. A company that records calls should be able to quickly replay them for any specific transaction or specific period of time.

With the new rules introduced, the European Union has managed to establish some rules to verify the legality of a conversation in court.

And despite the specific requirements to carry out recorded conversations admissible in court may vary from country to country (and from non-EU country to EU member country), in most cases the general rules we talked about at the beginning of the article apply.

How can Cloud Worldwide services help?

Our Recordia cloud-based call recording service is designed to ensure that companies that record calls legally can also make them admissible in court. Here’s how we do it:

1. Digital discussion: the platform generates a hash to preserve the integrity and authenticity of calls. In case a recording has been exported from Control Panel, we use this hash to compare it to the original file and detect if any alterations or modifications have been made.
2. Safety: All conversations are encrypted with the AES-256 algorithm and protected with additional layers such as certificates. Recordia is MiFID II, GDPR and Dodd-Frank Act compliant, ensuring the service is a reliable source for court admissions.
3. Traceability: Since our solution integrates with telecom service providers, we are able to provide recording traceability and detect any changes to recordings. This significantly reduces the risk of vocal imitations and falsification.
4. Data consistency: with a data consistency of 99.99999%, Recordia is able to record without losing elements that could distort the context of the conversation.
5. Registration: our logging and auditing system provides data on who has accessed what, when and from which device, enabling full traceability of access as required by data protection laws.
6. Warehousing: With Recordia, recorded calls can be retained for more than 5 years to comply with regulations such as MiFID II.

NOTE: Cloud Worldwide Services is not a law firm and this article is not intended to provide legal advice. To ensure proper compliance in your region, consult an attorney.