Many entities, both individuals and companies, record their phone calls. In many jurisdictions this is made legal by there being a recorded message at the start of the call informing the other party about the recording, and giving them an opportunity to hang up if they do not agree. Jurisdictions where this applies include the UK and California I think.

It must happen quite frequently that these recorded messages are just played to another recorded message saying much the same thing, and then when humans actually get to talk neither party is aware that the other is recording the call. This could also happen for other reasons where humans are not immediately connected.

What is the legality of the recording in this situation? Is the presence of the message enough to count as consent, even if it is not heard by a human? Is the message irrelevant if no one hears it so this is as if it was not there (and therefore the recording or its use is illegal)? Is the fact that one party is recording a call enough for the other to do so, even without either party being aware of the others recording?

1 Answer 1


Is the presence of the message enough to count as consent, even if it is not heard by a human?

Yes. The intent of statutes requiring party(-ies) consent is to protect confidential communications, and a statutory definition of "confidential communications" --such as section 632(c) of the California Penal Code-- reflects that not every phone call is considered confidential.

A scenario where "humans are not immediately connected" because of activity beyond their control taking place (example: automated phone menus) constitutes, in terms of the aforementioned section, "[a] circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded". Said circumstance supersedes the presumption of confidentiality and requires the party to indicate his intent to preserve that confidentiality. That party is responsible for listening to the automated disclaimers during the entire phone call and/or timely notifying that he revokes his consent to being recorded.

  • Is there any law supporting this conclusion? It seems easy enough to imagine communications that are confidential despite humans not being immediately connected.
    – bdb484
    May 24, 2022 at 19:23
  • @bdb484 "Is there any law supporting this conclusion?" Yes. I mentioned section 632(c) of the CA Penal Code. Not being immediately connected to another human should alert a person of average intelligence about the circumstances that (1) he is dealing with a communications system that entails significant automation, and (2) a recording disclaimer as well as recording functionality are likely implemented and running in that automated system. Accordingly, this suggests that "the communication may be overheard or recorded" and the person needs to preempt that possibility. May 24, 2022 at 20:05
  • That's law supporting the premise, but the premise doesn't actually support the conclusion. What I'm really asking is whether any court has endorsed this interpretation, which seems faulty.
    – bdb484
    May 24, 2022 at 23:16
  • "What I'm really asking is whether any court has endorsed this interpretation, which seems faulty." I doubt a court has had to decide this unusual type of dispute. But since you assert something like this "seems easy enough to imagine", you should be capable of finding court precedents that support your criticism.You don't even articulate where exactly you believe the rationale departs from the statutory criterion of reasonable expectation. It is hardly plausible that in a setting as outlined by the OP the parties won't even suspect that confidentiality might not be preserved by default. May 24, 2022 at 23:45

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