Recording customer conversations is a gross invasion of privacy!

An intentional breach of law

The Personal Data Authority (AP) states that recording is allowed for training purposes or if an agreement is concluded. But in the example, the caller was not even a customer, nor was a contract concluded! In short, this explanation is far too brief.

As the Privacy First Foundation, we believe organisations should stop the mostly covert recording of conversations. The AP should also be clear about what is and is not permissible, whereby they should investigate more into these large-scale practices. We receive complaints with regularity and we are considering creating a hotline, however we lack capacity and resources for the time being.

The AVG provides citizens with rights

Privacy laws specify how organisations may process personal data and, more importantly, when they may do so. And, simply put, this is only allowed if it is necessary for a legitimate purpose. That necessity is lacking at least during the waiting period prior to an interview. Automated collection of all calls without a legitimate purpose is unacceptable. Large-scale collection of call data is disproportionate and unjustified by any standards. If limited targeted calls are recorded for training purposes, for example, the AVG provides a basis for this. However, with an option for the customer to be subjected to this. However, the practice is that customers have no choice and transparency is lacking.

If an agreement is concluded and the call is used as proof of expression of will, in our view this is only permissible if the customer wants to cooperate. The basis of "legitimate interest" often applied by organisations is inappropriate, especially if in the balancing process it appears that the interests of the organisation outweigh those of the customer, caller or citizen. The European Court in Luxembourg will soon rule on this basis in a crucial Dutch case between the AP and KNLTB (case C-621/22). It will then become clear whether this basis can be used unrestrainedly for marketing purposes. The position of both the AP and Privacy First in this regard has always been that a "purely commercial interest" cannot be a legitimate interest.

Ethics

Do we want to live in a society where telephone conversations are recorded en masse and then used for analysis, for employee training purposes, as evidence in disputes and lawsuits and for customer profiling? If organisations made ethical considerations and put their customers more at the centre of their policies they would stop this practice.

Large-scale collection of call data is inappropriate, especially if organisations are not transparent about the necessity and purpose.

The lack of choice, that the customer is given the option in advance not to be subjected to automated data collection, is also indefensible.

This does not fit with Corporate Social Responsibility either.

Managers of organisations need to look more in the mirror, realising that the human touch also applies to their customers. If you put them at the centre of designing processes, such as the unrestrained collection of phone calls, the conclusion will quickly be that this is not ethical. In fact, ethics is a sum of standards and values that an organisation applies to its customers and employees.

Call data used against you

Only a few companies seem to report by phone that calls are recorded on hold. However, this is not reported by most companies.

Organisations have a legal information duty that requires them to explain comprehensibly to customers why a conversation is being recorded and what happens to it. They should also explain crystal clear what your rights are and how you can exercise them. Moreover, this should be at least as easy as ordering a product or service.

But in practice, this is now worded very vaguely, incomprehensibly and broadly. And the bottom line is that the organisation may use call data for just about anything. And remember: call recordings do get used in court cases, even if you know nothing about them. Indeed, civil law has few rules limiting how evidence can be obtained. So even unlawful, sneaky and non-emergency recordings can often be used.

Can customers do something themselves?

Yes indeed. And indeed, Privacy First calls on all citizens to do so!

• Be aware that everything can be recorded. And that those recordings can be used for anything, including against you. So also in disputes in court. Therefore, while waiting, always turn off your own microphone.
• Actively exercise your rights that you have as a citizen. Here, our goal is not to make it difficult for call centre employees, but to force companies and organisations to leave people alone unless call information is really necessary.
• Use your rights when notified that the conversation is being recorded: ask not to do so, or else erase it immediately afterwards. In the case of a deletion request of the conversation, a written confirmation is necessary so as not to be surprised later that data was still processed.
• In our view, if a conversation has been recorded, you have the right to inspect all call data, including the right to receive a copy or transcription of the full call recording.

Should an organisation not wish to cooperate with your request, our advice is to submit a written complaint about it to the organisation in question and to also to be filed with the AP. Organisations must respond, and when many complaints are made to the AP, the AP steps in and starts a factual investigation, which it is one of the few organisations entitled to do.

Is this worth all this effort?

Fewer and fewer people think and say this, but they are still there: "I don't care, they just take me in, I have nothing to hide."

But we should not always wait for the government or a regulator to intervene, especially if they do not. Increasingly empowered citizens can also actually do something themselves that makes organisations change the way they work. If enough consumers report that they do not just want this or at least want to have a choice, organisations will start to take this into account.