Friday, May 23, 2014
By CallFire, Follow me on Google+
Business-to-consumer communications are potentially intrusive and unwelcome, and making a recording of commercial phone calls is governed by strict legal guidelines. Companies who stray from the rules face costly litigation proceedings and compensation payouts, so it’s imperative that you stay abreast of the current legislation.
Even more complex for firms with a nationwide reach, these laws differ from state to state, and it’s not always easy to tell which law applies to any given communication. If you are communicating with someone in a different state, for example, it can be hard to establish whether state or federal law applies and, if it’s the former, which state’s law controls the situation. Twelve states – including California - require both parties to consent to the recording of a call. Owing to the complex nature of the law, it makes sense to play safe and gain the consent of all parties before recording any communication.
California’s Invasion of Privacy Act (CIPA) permits a $5,000 penalty for non-consensual recording of phone calls – and such legislation is constantly being tweaked to keep pace with the rapid rate of change in the technology world. Understanding CIPA and other statutes is of vital importance if you want to provide quality assurance and avoid a class action suit. Remember, liability attorneys are always ready to pounce on a legal error, even if it was made in good faith.
When the legislatures of the 12 two party consent states enacted the laws back in 1967, the main goal was to protect the public from wire-tapping and eavesdropping that could be used for espionage, blackmail or theft of trade secrets. Since then, the public has grown accustomed to being asked for implicit consent via a disclosure (“this call may be monitored for training purposes” etc).
But these privacy laws are being exploited by attorneys seeking a big payday from multi-million dollar verdicts that were unforeseen or unintended by those legislatures. The laws predated the age of telemarketing calls and customer service contact centers – developments which, ironically, arose to benefit the same consumers who now target, via attorneys, the businesses that use them.
In recent years, California has started to deal with the high number of CIPA class actions that clog up the court system. State courts are increasingly resistant to opportunistic applications of the law to ‘service monitoring’ calls (which were deemed to be in the public interest when the Act was created).
Unfortunately, defense attorneys have been less astute than their prosecutorial counterparts, in part because ‘service monitoring’ is not explicitly referenced in the CIPA text. This failure to educate courts on the intention of the original legislation has undoubtedly had a negative impact on honest business practices.
The tide has finally begun to turn, and defense attorneys are presenting legal arguments based on intent, and not adhering to laws that should be interpreted differently in the context of 21st Century service monitoring and improving the customer experience.
An aggressive defensive approach at the start of any litigation proceedings will attack these CIPA-citing claims as incongruent with the purposes and intent of the statute. For you, the business owner, it’s vital to obtain legal counsel that won’t buckle when faced with misplaced, cynical class action suits. The courts are now, finally, on your side.