Grounds for recording telephone calls
Telephone calls may only be recorded where essential for the protection of your employer’s legitimate interest. However, your employer will be required to perform a privacy assessment, in which your interests and rights must be considered in relation to your employer’s interest in the recording of telephone calls. Your employer will be expected to be able to substantiate his reasons for the above to you, the Works Council and, possibly, the Dutch Data Protection Authority (Dutch DPA) [College bescherming persoonsgegevens (CBP)] or a court of law.
Legitimate interest
The telephone is an indispensable part of modern business communications. For example, financial transactions are concluded via the telephone, as does much information transfer. In some cases, it may be necessary to record business telephone calls. This would apply when seeking to improve the quality of the telephone service provided by employees in a call centre. Recordings can also be used as evidence where an employee is suspected of fraud or when dealing with a customer’s complaint. However, your employer must have a sufficiently legitimate interest for the above and consider whether other, less drastic methods could be used to achieve the same goal.
Conditions and limitations
Where there is reason to believe that an employee or group of employees is breaking certain rules, the targeted monitoring of business telephone calls will be permitted for a (short) fixed period of time. In principle, monitoring will be limited to telecommunications traffic data. These are data that provide information on who has made telephone calls, when and with whom. Content may only be monitored where absolutely essential.
The secret recording of telephone calls will only be permitted in the event of (bomb) threats and in situations where punishable behaviour is suspected, such as the disclosure of business secrets. Your employer may only make such recordings where a less drastic alternative (the introduction of preventive measures, for example) is no longer possible. If secret recordings are being made, your employer must ensure that adequate safeguards are put in place. This includes the prevention of wrongful access to recordings and the introduction of a procedure resulting in the automatic destruction of recordings where no punishable behaviour is found to be the case.
In general, the telephone calls recorded should not be kept any longer than necessary, preferably for a period of six months or less.
The continuous recording of telephone calls is essential in some forms of service provision. In the case of telephone stock market orders, for example, the essential proof of the conclusion of an agreement cannot be gained by any other, less onerous means. However, steps must be taken to ensure that the recordings made are not used for any other purposes, such as staff coaching or assessment.
Your employer must inform you that calls will be recorded; this could be achieved by means of a sound signal at the start of each recording, for instance. Given this requirement, it will not be sufficient to merely inform employees of the above upon the commencement of their employment with the company. In general, customers must also be informed that calls will be recorded for the purpose of complaint settlement or evidence.
In principle, the telephone calls made by Works
Council members, company doctors and other members
of staff with a position involving confidentiality
will not be monitored. For more information on
the conditions applicable to the recording of telephone
calls in the workplace, please see the report entitled
Als de telefoon wordt opgenomen [Recording Telephone Calls].
The role played by Works Councils
According to the provisions of the Wet op de ondernemingsraden [Works Councils Act], Works Councils have a right of consent with regard to the decision to introduce a staff monitoring system and in
regard to the corresponding privacy rules. Therefore,
employee telephone calls may only be recorded with
the consent of the Works Council. Where an organisation
does not have a Works Council, employees must always
be informed of the purposes for which and the situations
in which calls will be recorded. An employer that
wishes to record telephone calls on an incidental
basis must discuss this with the Works Council. When
exercising its right to consent, a Works Council
may consult the brochure entitled Privacy: Checklist
voor de ondernemingsraad [Privacy: checklist for Works Councils]. This checklist will be useful to Works Councils in their efforts to achieve an appropriate level of privacy protection within the organisation.
Notifying the Dutch DPA of call monitoring
One of the obligations arising for companies and
organisations under the Wbp [Dutch Data Protection
Act] is to notify the Dutch DPA of the automated
processing of data. As a rule, companies and organisations
will not be required to notify the Dutch DPA of
non-automated processing. A number of types of
data processing are exempted from the notification
obligation. For example, Article 34 of the Vrijstellingsbesluit [Dutch Data Protection (Exemptions) Decree] exempts personal data processing effected due to the use of communication equipment made available to employees. Where processing is used with a view to employee assessment or performance measurement, for example, an exemption will not be possible.
Your rights
Pursuant to the Wbp, you are entitled to information
on your personal data and also to the access, supplementation,
correction, removal and blocking of said data.
You are also entitled to lodge an objection to
the use of your data by an organisation. For information
on how to exercise your rights, please see the
fact sheet entitled Data
Subjects and Their Rights [Rechten van de betrokkene].
If you have any questions or complaints
Your first course of action should always be to contact
your employer about any questions or complaints
you may have. For information on your rights in
the event of disputes, please see the fact sheet
entitled Mediation
by the Dutch DPA in Respect of Your Data [Bemiddeling
door het CBP inzake uw gegevens]. If you believe
that your personal data has been used wrongfully
and your employer fails to respond to your complaints,
or fails to do so to your satisfaction, please refer
to the fact sheet entitled Your
Complaint and the Dutch DPA [Uw klacht en het CBP] for information on the subsequent actions open to you.