Observations on the recording of phone calls
Almost two weeks ago, as talk of a federal Liberal/NDP coalition was peaking in the news, the Conservatives dropped a bombshell.
They released a covertly taped recording of NDP Leader Jack Layton, discussing the coalition idea with his caucus. Immediately, there were accusations of skullduggery and threats of criminal charges against the Conservatives.
Nasty though the act may have been, however, there were no laws broken in capturing the recording. According to the Criminal Code of Canada, it is not illegal for one of the participants in a conference call to record the conversation, or to release the recording.
This is not news to me. It's a fact I learned early in my journalism career, and for good reason: it's important to understand the legal issues of recording telephone calls when one performs so many interviews.
Here's how the law works. It is not illegal to record a telephone call or any personal conversation as long as one of the parties is aware it is happening. That one party, of course, would be the reporter doing the recording.
The intent of the law is more to protect against illegal wiretaps, in which no party to the call is aware that they are being recorded.
Nonetheless, I tried to make a habit of advising people that I was recording the conversation, whenever I called for a comment. But this was a professional courtesy there was no legal requirement to do so. More importantly, I always advised the other party that I was a reporter, and was calling for an interview or comment on a particular subject.
In other words, they were on the record.
During the 1980s, I remember calling a local member of the arts community to talk about an upcoming project. Because it was early days, there was only so much the individual was willing to say about the subject, and I wrote a story based on those parameters.
A week or two later, I received an angry call from the artist, who was agitated that I quoted him so accurately. "You recorded that interview, didn't you?" he said. "I can tell because the quotes are so true to what I said."
"Well, yes, I did. It was an interview," was my reply.
I apologized for not letting him know, but he wasn't taking any of it. Not advising him of the recording was a pretty major transgression, in his view, and he mused about taking legal action. He didn't, and if he had, wouldn't have been successful. But he was not happy. And I'm not sure that my relationship with that person ever recovered after that, in my many years of arts reporting.
Most of the time this is never an issue, because I do remember to advise people that I am recording. I am human, however, and sometimes I forget. But I always make clear that this is an interview. At that point, everything the subject says is on the record, whether it's recorded or not. And this is a point that some people seem to miss.
I ran up against this issue just last year, whilst pursuing a blog item that had legal ramifications. I called a lawyer in western Canada, identified myself as a freelance reporter ("blogger", in this case, might have been ambiguous and it was important for him to know he was on the record) and requested an interview.
He agreed, but after a moment or so of discussion, asked, "By the way, are you recording this?"
I confirmed that I was, and he sighed disdainfully. "Turn it off, please," he said. I replied that I was doing an interview, but would turn it off if he insisted which he did.
If the lawyer was under the assumption at that point that he was talking off the record, he was wrong. I used everything he said to me, because I made it clear that this was an interview.
There is a gray area here for journalists who do investigative reporting, which occasionally requires going undercover with video and audio recording equipment. Obviously, when the reporter is on the trail of scam artists or drug dealers, they can't advise their quarry that This is an interview.' I think it can be justified in these cases, as long as the information being revealed is clearly in the public good - that is, they are pursuing criminal activity - and reporters don't go undercover for trivial reasons.
And what about the behavior of the Conservative Party?
I think it was despicable.
According to story in The Globe and Mail, the NDP mistakenly sent the conference-call number to a Conservative MP, who logged onto the call as an interloper. He had to know the invitation was a mistake, and he was not really a welcome participant.
The ethical and honourable thing to do would have been to advise the sender of the mistake.
Instead, the Conservative MP dialed in, and obviously did not identify himself. Had he done so, it would have alerted the participants that an enemy was in their midst, thus changing the tone of discussion and probably ending the call. That he recorded the call proves there was devious intent.
Reporters identify themselves, and make it clear that the discussion is on the record, for a reason: it is the ethical thing to do.
It may have been legal under the Criminal Code, but the MP's behavior in this case was unethical and dishonourable.