Can I record phone calls?
This article is about the legislation concerning the recording of telephone conversations as applicable in the Netherlands. For all the rights and obligations that apply in your country for recording telephone conversations, you must personally investigate what you have to comply with.
The following text about the legislation concerning the recording of telephone conversations has been partly amended on 25 May 2018 by the introduction of the new GDPR (in the Netherlands AVG) legislation. Click here for information about this new legislation and recording telephone conversations.
A frequently asked question is “are we allowed to record phone calls?”. Unfortunately, Dutch legislation is not very clear about this, but if you follow the advice below, you will in any case comply with the guidelines as they are generally applied in the Netherlands.
For the sake of clarity there is a big difference between recording telephone conversations for private use or tapping conversations from others. Tapping means that you are recording a conversation in which you are not a participant. To start with the last one, to tap conversations can only be done after approval by the justice department. If you tap a call, you risk a prison sentence of at most one year or a fine of the fourth category (currently € 16.750, -) according to art. 139c lid 1
As a private person, you may record any calls that you have made. You do not need to inform your interlocutor of this. Seen from a criminal law point of view, you are allowed to record your own phone calls. If that provides evidence of a criminal offense (for example, a threat), this is not necessarily unacceptable to the criminal court. This also applies if you have not indicated in advance that you would record the call. Finally, as a citizen you do not have to adhere to the strict investigation requirements that the Public Prosecution Service should observe. According to civil law you may also record your own telephone conversations. This does not pose a problem as long as a conversation is only taken up to be able to listen back to what was said at a later date (for example, a recording of an important conversation with a doctor or lawyer). Even if you do not say that you are going to record the phone call, nothing is wrong as long as you only use it for your own private use. Incidentally, you may not simply publish these interviews: that can be punishable (libel). Also blackmail with secretly recorded conversations is punishable (extortion, threat).
As an organization, you may also take calls as you meet certain requirements. One of those requirements is the so-called “single party notification”, ie one of the parties who take part in the conversation must be aware of the fact that the conversation may be included. You are therefore not</ strong> obliged to inform your customers that the call will be recorded as long as your employees are aware that the call can be recorded. You probably know the notification “this call can be recorded for training and quality purposes”</ em>, this is neat to do towards your customers but is not a requirement. You must, however, take into account the privacy of your employees. For example, you may not include private conversations from your employees. Pursuant to the WBP, an employee is entitled to information about, access to, addition to, correction, removal and protection of his personal data.
Other rules apply to financial institutions. These organizations are obliged to record conversations in which transactions are handled. From January 3, 2017, there are also adjusted rules here. These rules are laid down under Markets in Financial Instruments Directive II. One of the most important changes is that from now on, not only the conversation should be included in which the actual transaction is recorded, but also any prior discussions.
Further information can be found on the websites below:
Role of the works council
The Law on Works Councils states that the Works Council has the right to consent to a decision to use a personnel tracking system and to privacy rules for that use. The recording of telephone calls from the employees is therefore only allowed with the approval of the Works Council. In organizations where there is no Works Council, the staff must in any case be informed about the purposes for which and the situations in which the interviews are recorded. An employer who occasionally records telephone conversations must discuss this with the Works Council.
Below are some sites that further deepen the topic of call recording;
If you have any questions regarding the laws and regulations in the field of recording telephone conversations, please contact us at any time.