CNIL has published guidance on the establishment of contacts via recorded telephone conversations.
In the establishment of a contract, it is sometimes necessary to record a telephone conversation as proof of the formation of the contract. Under the law, this is permitted where necessary. Therefore, in order for an organisation to lawfully record telephone conversations, it must, as data controller, demonstrate that there is no other way to prove that a contract has been formed with the data subject. CNIL has published a report, detailing the factors to be considered when an organisation may need to record phone conversations in the establishment of a contract.
While some contracts can be formed orally, others must be established by a written act.
Registration must be necessary to prove the formation of the contract. For written contracts, registration is not necessary in order to establish the formation of the contract. However, when a consumer is contacted by telephone with the aim of forming a contract relating to the sale of goods or the supply of a service, for example, the customer is only bound by this, after having signed and accepted it on a durable medium, like a written contract. The recording of telephone conversations for purposes of proof of the formation of the contract is therefore unnecessary in this context. However, for contracts that can be taken out orally (for example, for the purchase of certain paid services), if the recording of conversations is possible, the principle of data minimization must be respected in the process.
In cases where the contract is established via a telephone conversation, only the part of the conversation relating to the establishment of the contract may be recorded.
In cases where contracts can be taken out over a recorded line, unless legal provisions allow it, these recordings may not be permanent or systematic. Only the conversations relating to the establishment of a contract by telephone may be recorded. Therefore, the company or organization will have to provide mechanisms to record the telephone conversation between the phone operator and the consumer only from the moment when the conversation clearly relates to the establishment of a contract . The relevant part of the conversation can only be retained in the absence of any other proof of the formation of the contract. The recording of the telephone conversation also cannot be triggered by default, in an automated way. Ideally, the phone operator would manually trigger the recording, only in cases where the purpose of the conversation is to confirm a contract which cannot be proven by any other means.
Processing of personal data which is based on the establishment of the contract is permitted under the GDPR.
When people agree to enter into a contract by telephone, the recordings of the telephone conversations can be processed on the basis of the legal basis of the contract under the GDPR. Article 6(1)(b) GDPR provides a lawful basis for the processing of personal data to the extent that “processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract”.
