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Expert Insights

01 July 2021

Recording Phone Calls: Don’t take Consent for Granted

“Live” interviews have long been an authentic and personable way for journalists, whether from traditional media platforms such as television networks to influencers with a social media following, to gain an inside track on the latest news scoop “from the horse’s mouth”. The rise of social media and the instantaneous means in which news can go ‘viral’ through a multitude of sources, not all of whom are credible, has only exacerbated this need to obtain information from the actual source. Yet, what if an interviewee who is being called and interviewed “live” does not actually know he/she is on live television?

Shannon Sharpe’s Interview with NFL star wide-receiver Julio Jones

Across the pond in the US, this was the dilemma facing Fox Sports chiefs when Shannon Sharpe of sports debate show, Undisputed, called National Football League (NFL) star wide receiver Julio Jones to discuss Jones’ future with his then team, the Atlanta Falcons. Jones, apparently unaware that he was being filmed on live television, told Sharpe that he was “outta there, man”, only increasing trade speculation surrounding his future with the Falcons.

While Sharpe may have obtained the latest scoop on one of the NFL’s hottest talking points at the time, his stunt left Fox Sports with a massive headache on its hands. Unsurprisingly, the Falcons were unamused with the incident due to fears that their negotiating position to trade Jones had been compromised. From a commercial standpoint, NFL teams and the NFL may scrutinise their relationships with Fox Sports in light of Sharpe’s actions and limit media access due to issues of professionalism and trust.

From a legal standpoint, Sharpe may have breached Californian law under the Penal Code if Jones was indeed unaware that he was being filmed.  Undisputed is produced in Los Angeles, California, which requires two-party consent to record phone calls. Under section 632 of the Penal Code, Sharpe could face a fine of up to $2,500 or imprisonment not exceeding one year or both for recording a conversation in which one party had an objectively reasonable expectation that they were not recorded. While there are few signs that Jones will press charges against Sharpe, this incident certainly shines a light on the need to be aware of a country or state’s privacy laws when conducting such live interviews.

Is this applicable in the UK?

The Regulation of Investigatory Powers Act 2000 (RIPA) underlines that individuals can record conversations without consent. This includes telephone conversations provided the recording is for their own personal use. Should the individual who has obtained the information choose to share the information with third parties without the consent of the individual whom they recorded, they will be in breach of the RIPA.   

For business phone calls, the Investigatory Powers Act 2016 states that the monitoring of phone calls is allowed either if the company has obtained the customer’s consent or if the monitoring is permitted under the Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations 2018. Relevant circumstances that allow for the monitoring and recording of phone calls include the need to keep a record of instructions in order to establish and obtain information relevant to the business, and to prevent crime. Data protection laws may be involved as personal data may be collected during this process. If so, the UK GDPR and Data Protection Act 2018 will apply.

In summary, individuals and businesses alike should always request consent before recording telephone calls. Businesses should ensure that staff members undergo regular training and make readily available an up-to-date staff handbook to ensure that gaffes like the one Sharpe committed are minimised.

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