To Record or Not To Record


Modern technology being what it is the temptation sometimes cannot be resisted to record (or even film) pivotal conversations and meetings. This will mainly come to mind with your contact point in either the Pubco or the Brewery. The law varies between individuals and businesses so let’s focus on individual private activity.

Recording a conversation in secret is not a criminal offence and is not prohibited. So long as you are going to keep the recording for your own use, you do not need to obtain consent or even let the other person know what you have done. You can use the recording in negotiations with that individual to “jog their memory” of offers or promises made. You are still within the closed circle of privacy linking you to the other person. That being the case we always recommend that immediately after the conversation or meeting that you put what you know has been said in an email, just to be safe. You are then ‘on record’. You don’t have to confirm that your “recall” was in fact from a recording. It is of no consequence. Another essential point is that if you do send an email put  “Open Correspondence” on the subject or heading line. This will ensure that if you do want to use the email in evidence that it is not cloaked in the confidentiality of ‘Without Prejudice’ . But more of that another time.

The rules change dramatically if you intend to either publish or use the record of the recording in any form of public forum which is outside the scope of a private conversation between two people. The governing legislation is The General Data Protection Regulations (GDPR) 2018.These regulations replaced, updated and strengthened the original Data Protection Act 1998. Personal conversations are referred to in the GDPR in Article 6,paragraph 1 (a). In very simple terms you must obtain the consent of the other party if you are stepping outside your personal private use. That consent should be detailed and word specific. This especially applies if you want to use the record of the conversation either in Court or in evidence at another Tribunal such as an Arbitration or linked with an Independent Assessor. If you allude to the conversation having taken place with no written back up then that will be classed as Hearsay. If the recording is sensitive, then odds on permission will be refused. That was why we recommended the sending of an email as outlined above.

Public bodies and businesses nearly always record telephone conversations. They are obligated under the GDPR 2018 to inform you that the recording is taking place. Usually with the observation the “we are recording this conversation for either security or training purposes”. Neither may be relevant but you have been told in advance. So they are legislation compliant.

Finally, we always recommend private recordings if your technology is up to the task. Not least because memory genuinely does play tricks over the passage of time. And your BDM, who is supposed to be your business partner, did mean what he said and will always keep his promises and not threaten you…won’t he ?

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