I think that's right, Andrew, and is the conclusion I have reached.
I don't think there is a "domestic purposes" exception for RIPA
(although there is of course for DPA).
Chris referred to the OFCOM guidance earlier and that is helpful, but of
course OFCOM don't analyse how they got to the conclusion - it must be
as you say on the basis of not "in the course of transmission". But
then why do they then go on to mention.
I have been struggling with the spaghetti that is section 2 of RIPA. If
she planned to send the tape to the Sun, it would have been
interception. If she recorded only for her own purposes and THEN sent it
to the Sun, it isn't. Weird. There are other such anomalies in the
drafting of section 2. It seems its "interception" for an employer to
listen in by means of using a phone in another room (he's not the
"intended recipient" - but see my point in the next para - the
individual being dialled is), but not if the employer is in the same
room listening on speaker phone (as its - arguably at least - no longer
"in course of transmission" as you say). But the consequence is the
same.
As for "intended recipient" I wonder if its always clear who it is. If
someone calls a call-centre of a bank - the bank is the recipient, not
the individual picking up the call. If another employee of the bank
listens in, then that arguably is not interception as its only the
intended recipient (the bank in the guise of the employee listening in)
who is doing the "monitoring".
Renzo Marchini
Dechert LLP
+44 (0) 20 7184 7563 direct
+44 (0) 20 7184 7001 fax
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-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Andrew Cormack
Sent: 13 November 2009 17:22
To: [log in to unmask]
Subject: Re: [data-protection] Recording conversations
According to the Sun spokesman on PM on Wednesday night (not a source
I'd usually quote!) the recording was made by turning on the loudspeaker
and a third party using their mobile as a Dictaphone. So arguable, I
suppose, that it wasn't interception because the recording was made
"after" (in a geographical, rather than temporal sense) the
communication had reached its intended destination, not while it was "in
the course of its transmission" as required by RIPA 2(2)?
I'm aware of lots of discussions on when e-mails cease to be "in the
course of transmission", but hadn't noticed that telephony could raise
the same question :-(
Andrew
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Broadfoot, Kevin
> Sent: 12 November 2009 16:09
> To: [log in to unmask]
> Subject: Re: Recording conversations
>
> Renzo,
>
>
>
> Could it be that in Janes/Brown Mrs Janes is a private citizen acting
> in a domestic capacity whereas in Iain Blair's case he was
> Commissioner of the Met Police at the time so it might not be entirely
> clear whether he was acting in a private capacity? Constrained
> argument but the best I can come up with.
>
>
>
> rgds,
>
>
>
> Kevin
>
>
>
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Marchini, Renzo
> Sent: 12 November 2009 15:56
> To: [log in to unmask]
> Subject: Re: [data-protection] Recording conversations
>
>
>
> I don't do much in the RIPA area, but I am now totally confused by the
> law here.
>
>
>
> 1. It is not an unlawful interception to record the Mrs Janes/Brown
> call and send it to the Sun.
>
> 2. In the Blair case it was (or some say was) an unlawful
interception
> as the other person did not know it was being recorded.
>
>
>
> I can't see a difference; can anyone?
>
>
>
> Renzo Marchini
> Dechert LLP
> +44 (0) 20 7184 7563 direct
> +44 (0) 20 7184 7001 fax
> [log in to unmask] <mailto:[log in to unmask]>
> www.dechert.com <http://www.dechert.com/>
>
>
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