Anglo tapes put focus on legal position of recording conversations
Law surrounding recording and sharing of private conversations is complex
Last week’s Anglo tape revelations shone a spotlight on the existence of internal recordings of private telephone conversations in the finance sector – even if that wasn’t exactly the point of the exercise.
The likelihood is that the tapes were created as part of oversight rules on monitoring the conduct of financiers dealing in treasury, although Ireland does not actually have any such binding requirement.
The reason why John Bowe and Peter Fitzgerald’s revealing exchange on their dealings with the Central Bank was ever captured in the first place has probably got more to do with internal policy at the former Anglo Irish Bank than in Ireland Inc .
Six years ago, the Irish Stock Exchange was tasked with regulating the area of corporate conduct and insisted on recordings of phone calls being kept for a period of three months, primarily for use in case of complaints.
However, and somewhat surprisingly, when the mandate was superseded by a European directive in 2007 handing over enforcement to the Central Bank this ceased to be the case and the notion of recorded calls in the financial sector moved from the compulsory to the voluntary.
In the case of Anglo, it is believed the calls were taped because Bowe was acting director of treasury at the time.
As a banking source explained: “Where there is the potential for large transactions, that [the recording of conversations] would be the norm.”
Currently, a new round of EU negotiations on the rules governing the sector – the Markets in Financial Instruments Directive, or soon the “MIFID 2” – is underway and should set such measures in legal stone.
That is perhaps explained by the fact that the London stock market is the biggest in Europe and traders, potentially open to accusations of professional abuse, must be seen to be regulated.
Recording conversations, and certainly sharing the content, delves deep into legal complexity, with much of the focus laid on consumers and individuals, and with a view to striking a balance between the sensitivities of personal data and corporate responsibility to maintain information.
We have all heard the “training or verification purposes” mantra of call centres and customer support lines, but the legality behind how we deal with the need, requirement or even temptation to record private conversations can be complicated.
The Office of the Data Protection Commissioner has clear rules when it comes to this – those involved must be made aware they are being recorded.
However, these rules deal specifically with the safeguarding of personal information, generally of customers, and do not cover areas in which conversations are recorded for business purposes.
A spokeswoman explained that cases reported to the office involving recorded inter-business conversations are “marginal at best”.
“Anybody can be seen to make a complaint to us to outline why in those specific circumstances it would apply to data protection and we would look at that,” she said, but added that such cases are rare.
The Postal and Telecommunications Services Act 1983 says that anybody “intercepting” [recording] or assisting in intercepting information is committing a criminal offence.
However, that is tempered by legislation under the Interception of Postal Packets and Telecommunications Messages Act 1993 which allows for such activity where there is consent on the part of those being recorded. That would apply to the likes of the financial sector.