International Law

TELEPHONE TAPING BY BANKS IN THE DUTCH CARIBBEAN

By Karel.Frielink

It is common practice

It is common practice around the world for (dealing rooms of) banks and brokers to tape conversations with their clients in order to avoid misunderstandings as to the selling or buying instructions given by the clients. There are no specific laws or regulations in the Netherlands Antilles applicable on this aspect of telephone taping.

In various countries there are laws protecting the privacy of individuals, within the scope of which taping of incoming calls do fall. In particular on the basis of the EU Directive on personal data protection (Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data) various European countries have implemented in their jurisdiction legislation relating to the protection of personal data.

The scope of such legislation is that it applies to any operation or set of operations which is performed upon personal data. Personal data are the data relating to any identified or identifiable individual. Furthermore, it provides for a certain obligations for data collectors, requirements for data processing, rights of data subjects and the transfer of data to other countries.

In absence of Netherlands Antilles legislation, for this aspect of telephone taping a guideline could be sought in the personal data collection and privacy legislation in Europe and in particular in the Netherlands. From this entails that the following requirements are to be met:

1. prior notification (through account opening documentation and general terms and conditions);
2. taping and use of the tape only for the specific purpose to record instructions with respect to a security transactions;
3. tapes are kept in a form which permits identification of the individual, and
4. data should be destroyed after certain retention period (e.g. after five or more years, which given its evidentiary value also depends on the applicable limitation period).

Karel Frielink
Attorney (Lawyer) / Partner

Full post as published by Karel's Legal Blog on February 18, 2008 (boomark / email).