11 May 2022, another adjustment to Google’s Android policy took place. From that day, Google will no longer allow apps, so-called ‘call recorders’, to record phone calls.
Due to a recent policy change by Google, call recorder apps are no longer allowed to make recordings of a phone call using the accessibility features of Android phones. So you can no longer quickly install an app to record your phone calls using your Android smartphone.
As an exception, it is still possible to record calls via Google’s own phone app itself. However, this feature has not been made available by Google in the Netherlands and Belgium. This is despite the fact that recording conversations in Belgium and the Netherlands is not prohibited if you are participating in the conversation yourself. You are also not legally obliged to inform another person of this, although this is obviously desirable. However, these recordings may violate the right of privacy. Therefore, the admissibility of a secretly recorded conversation as evidence in a court case will always be evaluated on a case-by-case basis. Here, the court will take as criteria the reasonable privacy expectation of the participants in the conversation, the intended purpose of the recording, the content of the conversation, the circumstances under which the conversation took place, the capacity of the participants in the conversation and more.
Except for intentional damage as a purpose
If one discloses and distributes a conversation with the purpose of harming someone, then Article 314bis, §2, paragraph 2 of the Criminal Code applies “he who, with fraudulent intent or with the intent to harm, uses a lawfully made recording of non-publicly accessible communications or data from an IT system.” In addition, there is the possibility of being prosecuted for criminal offences such as defamation and defamation of honour, for example.
Professional phone calls
Naturally, other guidelines apply to professional telephone calls. For example, an employee must always be informed by the employer of the existence of this recording, the purpose of the recording and the possibilities of accessing and correcting the recorded data, and customers or suppliers must also be informed before the call that the call will be recorded. An exception are call centres that do not require consent from the participants, both employee and customer, solely for quality control purposes. Keep in mind that a customer also always has the right to request the data that you as a company have recorded from him and can request the deletion of this data. An exception are financial institutions that fall under the MiFID II regulation and are therefore legally obliged to keep all data for 5 years (7 years in occasional cases). So if a customer asks for this data to be deleted they may not act on it as MiFID II regulation takes precedence over GDPR legislation
The new policy does not affect recording features added by the manufacturer of your Android smartphone. This is because these system apps are pre-installed on the phone and therefore have every permission. So for some manufacturers, it will still be possible to record a call with your phone but this will no longer be possible with any Android phone without a workaround. Recording calls will therefore depend on which smartphone you use. Samsung and OPPO, for instance, can tell you how to activate call recording.
So re-listening to a conversation only by yourself for private use does not pose a problem. However, it is important to always consult a lawyer when you want to know the usability of recording a phone call.