UK: if you are being recorded by a business why don't you have a reciprocal right to record them at the same time?

Question

I was in a car rental firm's mini-office at a UK airport, and there was a sign up saying you may be recorded. I got my digital voice recorder to start it off. The member of staff attending me might not have noticed, but I muttered "If you're recording me..." and tailed off with a smile as I held it before clicking the record button. The member of staff went to a forceful raised voice way of speaking immediately and told me it was illegal for me to record in their office. We went back and forth on the subject, me pointing out their sign, but he wouldn't progress with the car pickup until I showed him that the device was off.

What's the legal status of a person recording an interaction with a business, when the business has a blanket statements (sign in this case but it could easily be audio at the start of a telephone call too) about "you may be recorded"?

Surely if they broach the subject of recording to me, I can just start recording and use it with impunity. Specifically without notifying them, given that would seem equitable.

It seems to me that this is oddly ill-defined in UK law. There's a BBC article from 2006 on when it's legal to use a voice recording you may have surreptitiously made, but nothing appears simple here. We also have unending dash-cam and helmet-cam footage from the UK, including Jeremy Vine's interaction with that aggressive driver when on his bicycle, and yet nobody is ever getting cautioned or arrested for footage without consent, yet there's a suggestion in the BBC article that you could record something but not rely on it a court case without the implicit consent step.

The US has one-party and two-party laws that vary by state (dmlp.org details that), but the UK sits in some weird imbalanced place that seems inequitous (my spell checker is telling me that's not a word).

Does EU law have a bearing on UK law here? At least for the next 18 months?

Answer 1

Because you are on their premises and they get to decide what people can or can't do while on their property. This has nothing to do with if recording is legal or not, it has to do with basic property rights and trespass.

Let's assume that recording is perfectly legal: so is eating ice cream. However, if its my shop, I can require that you do not make recordings just as I can require that you do not eat ice cream. If I make this requirement known you have three options: you can comply, you can leave or you can stay and do the thing I have prohibited. The first two are legal, the last one isn't; its trespass which is both a tort for which I can sue you and a crime for which you can be arrested and prosecuted.

Answer 2

They have the right to set the rules on their property. You have the choice to agree to their rules or take your business elsewhere. Not sure about UK law, but in the USA, you become a "criminal trespasser" when refusing to leave private premises after being instructed to do so for nearly ANY reason.

Recording someone on a public highway is generally legal, although a few places may require consent to record their voice (e.g., Massachusetts), if it's not obvious you're recording. If it IS obvious, then their continued speaking acts as proof of their implied consent to be recorded.

Answer 3

I am not a lawyer. Instead I rely on logic and common sense. Be warned.

A recording, video or audio, can potentially become a piece of evidence. If I rob a store, and they get video of me in the act, that video can become evidence against me. That is the main reason for having the camera there, and with a notice saying that I'm being recorded, the store can legally record everything that happens. There is a presumption that the store won't use the video for unethical or illegal purposes, such as altering it in some way if it's needed for a trial (i.e., tamper with the evidence).

The store and its employees have the right to protect their premises. Recording is a form of protection. I have the option to leave and avoid being recorded.

However, all that has nothing to do with your rights. Whether the store records you is immaterial to your question.

It makes sense that you should be allowed to record a commercial transaction. You want to protect yourself, just as the store wants to protect itself. If you do end up in court, you want evidence to support your version of events. In that case, you should have to notify the store, so they have the same option to end the encounter.

One issue here is chain of custody. If the store is robbed, an officer arrives, collects the video, and takes it to the station. Between the time the video is taken and the time it's shown in court, some accountable professional has custody of it.

If you make a recording, you take it home, and only you have custody. You could alter the recording at any time before the trial. (I'm not saying you would, it's hypothetical.) The court can be sure about the store's recording in a way it can't be about yours.

There are other potential hazards. You might record something the store didn't want recorded, something unrelated to your case. You might accidentally record something related to another customer, which would infringe on their rights. Conceivably, your recorder could be an electronic data thief or even a weapon (again, hypothetical). Businesses face these sorts of risk every day.

In balancing the risks between a business and a customer, the law usually comes down on the side of the business. Because of that imbalance, customers don't have the same rights. Do businesses take advantage of customers because of this? They won't admit it, but it happens. Do customers take advantage of businesses? Of course. You've suffered the consequences of the bad behavior of others.

Answer 4

why don't you have a reciprocal right to record them at the same time?

Reciprocal rights would require a change to UK law. Right now the business could just ask you to leave if they see you recording (or for any reason really). And if you don't leave it is a trespass situation, and the police could get involved if the business called them and you still had not left by the time of their arrival.

If you wanted the right to record without such a penalty in the situation that they are recording, without their being able to cease doing business with your for that you would need to see the law changed. A change that would justify your recording of them if they are recording you, as perfectly reasonable. The current situation being inequitable of course.