The legal basis for our customers' recording of their customer conversations

Recording customer conversations can add great value to a company in terms of ...:

– achieving higher customer satisfaction and NPS scores
– getting data and understanding customers' reasons for calling
– qualifying and improving coaching methods
– building a library of best practice conversations
– improving quality and time of onboarding of new employees
– revealing the secret of what the best employees do (right)
– learning from mistakes and understanding knowledge gaps

It is these above-mentioned value driving insights the Capturi's platform helps our customers to derive value from in a clear and operational way. 

In order for Capturi to be able to provide these insights, Capturi needs to process recordings of our customers’ conversations with their respective customers. 

It is our customers’ sole responsibility to ensure they have a valid legal basis for recording and processing customer conversations. This responsibility of the customer is also reflected in our subscription terms, which can be read here.

If you are a potential new customer considering recording your employees' customer conversations, we have in the following outlined relevant considerations associated with ensuring you have a valid legal basis. 

As the voice in itself is personal data, recording by default involves processing of personal data, even if no other personal data is exchanged during the recorded conversation. 

However, this does not mean that you cannot record a customer conversation. It just means such recording must be done in accordance with applicable general data protection rules (GDPR), and local laws on the matter, including ensuring due legal basis for the recording and the processing purposes. 

In order to record customer conversations, it must be decided for which processing purposes you intend to process the personal data in the recordings for. Such purposes could e.g. be quality assurance, service improvement, education and/or documentation.

In terms of the legal basis for recording the conversations pursuant to such purposes, this may among others be based on either (i) a contract, (ii) a consent to the recording, or (iii) a balancing of the company's interest in the recording against the data subject's interests and their fundamental rights under GDPR.

In this context, it is emphasized that the assessment of the due legal basis will be an assessment based on the circumstances specific to your company and the purposes you intend to use the recordings for.

Inbound calls

The most common legal basis for recording inbound calls is obtaining a consent from the inbound caller. Many dialer and telecommunication systems provide simple ways for obtaining such consent e.g. through the Interactive Voice Response (IVR)menu and the possibility for the caller to dial in the consent for the recording (we all know the call to a support line where you are asked, if you want to consent to the recording of the phone call for training and quality assurance purposes by dialing either 1 or 2).  

Please note that a consent under GDPR comes with various requirements in order to be deemed a valid consent, which needs to be taken into account when making the speak for the consent in the IVR menu, including:

1. Consent must be voluntary
This means that there must be no consequences for not giving consent and completing the call mustn’t be conditioned on consent being given. Thus, the company must provide the same service regardless of the caller giving consent or not. 

2. Consent must be unambiguous and explicit
There must be no uncertainty as to whether the customer has given consent to recording. The consent is therefore best given by an actual act by the caller e.g. dialing 1 or 2, or a clear verbal acceptance from the caller. 

3. Consent must be informed and specific
The person must have sufficient information about what he or she is consenting to. This must be seen in the context of the company's duty to inform. You can read the specific rules on disclosure here.

It is therefore important, the caller gets sufficient information about what he or she is consenting to. This must be seen in the context of the company's statutory obligation to inform data subjects of the company’s processing actions.  

When you inform the customer about why recording is relevant, and how and for which purposes the recording will be used, you show transparency and build credibility and trust. It is our clear experience that most people do not mind being recorded, if they clearly understand the purpose and how the recording is being used. Contrary hereto any uncertainty as to why you want to record your customer conversations will make your customers skeptic and unlikely to grant the consent. 

In general, we recommend that you make a good and comprehensive “speak” when asking your inbound callers for consent to record the conversation, including a clear description of the overall purposes of the recording with specific reference to your privacy policy for further detail on the processing done and the purposes. The Danish Data Protection Agency has in their guidelines for call recording made a Danish worded suggestion for “speaks” related to various recording purposes – see more here (available in Danish only).

Outbound calls

For telemarketing and outbound sales, starting the call with a request for consent to record and subsequently needing to document this is an obvious hassle and practically not very likely, if you have hopes of completing the call successfully. 

Fortunately, many dialers and tele solutions enable recording of only the outgoing part of the call. This way, it is possible still to obtain insight into the employees’ part of the conversation, but without having to obtain consent from the customer. 

As the data controller, it is up to our customers to assess the due legal basis for recording their employees. Typically, this can be considered an integral part of the job of the employees making the calls. Depending on the specific employment situation, the legal basis could be fulfilled with the following being communicated to the employees: 

"As part of your employment, we will process personal data about you. When you are employed in a customer service, sales, or support position, this includes recording your telephone conversations with our customers and potential customers. The purpose of such recordings is to train you and our other employees as well as to improve our services.”  

Please note that even if only the employee is recorded, the employee may repeat personal data received from the call recipient during the call, which is therefore processed as part of the call. The processing of these personal data requires an independent legal basis. This could e.g. be that the processing is necessary for the conclusion of a contract with the recipient of the call or similar. Example of dialers that allow for only recording outbound tracks:

Example of dialers that allow for only recording outbound tracks:

– Adversus
– Leocall
– Dialfire
– Genesys Purecloud
– LeadDesk

Using these suppliers and the above approach, will enable you to record and process the employee side of your employees' customer calls. If you do not use a supplier that records only one side of the conversation, but the entire conversation including the customer's track, you will actually still be able to record without the customer's consent under the above-mentioned terms of employment. 

This is possible because Capturi has developed a method to identify the employee's part of the audio track. However, this requires that our client deletes the call recipient’s audio track immediately. This also requires that our client, based on a specific and documented balancing of interests, considers that this short and temporary processing of the call recipient’s voice and calls (until these data are deleted) is necessary to pursue legitimate interests in using the sales person recording for training, coaching, quality assurance, or documentation, and that the interests or fundamental rights of the recipient do not override the temporary and short-term processing of the potential call recipient’s calls before absolute deletion. 

If such setup is chosen, it may happen that the recording of the employee includes snippets of the customer speaking, e.g. in some instances where they are both speaking at the same time. However, the platform supports our customers’ ability to delete voice recordings, and if such recording is found, it should be instantly deleted. We therefore recommend establishing a procedure that ensures that the responsible and relevant employees are aware of the need to delete such recordings.

Processing of call recordings

Audio recordings of conversations must be processed and stored securely. It is highlighted that our customers’ recording are often stored in several places, including their own storage, storage at the supplier making the recording on the customers behalf, and at Capturi. 

You can read more about our security measures here.

Once our customers no longer have a need to store the recording, it must be deleted again in accordance with whatever deletion policy our customer has, and the system is set up to reflect this. How long the need to keep the recording varies from customer to customer, and the assessment hereof is based on the circumstances specific to the customer and the purposes the customer intends to use the recordings for.  

The persons who are part of the recordings can ask for deletion of such recordings at anytime, and therefore, the recordings may need to be deleted based on your assessment of the request for deletion. The Capturi platform has been designed so that recordings of specific individuals can be immediately identified by simple filter settings and deleted as necessary based on your assessment. 

With Capturi's user settings, you can also easily set up the platform to ensure that recordings can only be accessed by employees who have a work-related need for access to the recordings. 

It is important to use the recording only for the purpose for which they have beenmade. This means that you should not use the recording for anything other than what you have informed the persons being recorded about. 

The purpose of the above-mentioned outline of relevant considerations associated with recording is purely for informational purposes, and should not in any regard be considered legal advice as to your specific recording of persons. It is to the contrary recommend that you obtain legal advice to ensure that your specific recording of persons is done in accordance with all regulations relevant to your specific company and actions.