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The Privacy Advisor | Can call centers rely on legitimate interests for audio recordings? Related reading: 3 reasons why Europe's connected vehicle guidelines matter


Every command we give to our voice assistants and every conversation we have with call centers, we create voice data. Voice data has become the next frontier in the surveillance economy because every communication via speech gives critical insights into customers’ emotions, expectations and needs. Analysis of this data help businesses provide better services and products.

Call centers have vast amounts of audio recordings of calls. These calls are a gold mine to understand customers’ expectations, complaints and emotions within a context. Analysis of these recordings can help call centers derive benefits, such as training their staff. They get better at detecting fraudulent calls or if they speak too fast or vaguely, they are re-trained to improve on these shortcomings.

Based on data analytics, they can direct calls to the "best" call center agent that can solve it most effectively. Customers usually complain about talking to someone who does not have the authority or the competency to solve their problems. If calls are directed to competent people, customer satisfaction will increase.

However, recording these calls requires a lawful basis under Article 6 of the EU General Data Protection Regulation. When call centers record calls for service improvement or training purposes, they can rely on consent or legitimate interests.

This post argues that call centers should rely on legitimate interests when recording customer calls for purposes of training and service improvement purposes.

Lawful processing grounds under GDPR

Article 6 of the GDPR provides six alternative grounds for the lawfulness of data processing: consent, performance of a contract, legitimate interest, vital interest, legal requirement and public interest. 

There is no hierarchy between these grounds; there is not better, easier or stronger ground. Furthermore, neither the wording of the GDPR nor the Recitals suggest such hierarchy.

Therefore, call centers have a choice to determine the legal basis that they rely on for audio recordings. Unless the other four specific grounds apply, call centers will choose "consent" or "legitimate interests."

Danish case

The lawfulness of audio recordings for training purposes was discussed in a case with the Danish data protection authority, Datatilsynet. A telecommunications company informed its customers that their calls may be recorded for training purposes but didn’t give them the choice to opt out.

The authority ruled that affirmative consent of customers was required and legitimate interests don’t justify recording these calls for training purposes.

Although there is no English version of the original decision, some speculate that the authority rejected the "legitimate interests" ground because the controller could have obtained the affirmative consent of individuals by asking for opt-in.

Requiring call centers to obtain consent would be contrary to the GDPR because, as explained above, there is no hierarchy between consent and legitimate interests; they can rely on legitimate interests.

Why call centers should rely on legitimate interest 

Pros and cons of 'consent’

"Consent" is easier to implement and eliminate ambiguity. However, if an individual rejects to give consent, call centers cannot change the legal basis to process personal data, killing off its chance to utilize that data.

Pros and cons of ‘legitimate interests’

It guarantees that the controller can maintain its processing operations without worrying about consent or withdrawal of consent, so it gives more certainty. However, since the data controller has to justify relying on legitimate interests, it imposes an extra burden to prove compliance; it is riskier.

Why call centers should rely on legitimate interests?

If a call center wants to process recordings in the long term without the risk of losing control over data, it should rely on legitimate interests instead of consent. "Legitimate interests" guarantee that the call center can maintain their processing operations on voice recordings.

By relying on legitimate interests, a call center will collect more voice data because data subjects cannot prevent data collection by not giving or withdrawing consent. By collecting more data, a call center will likely have more high-quality data. More high-quality data will make the analysis of voice recordings better, helping the call center in achieving their purposes of staff training and service improvement.

For example, analyzing more voice recordings can make fraud detection easier because it will provide a more diverse set of examples of fraud attempts.

If they rely on consent, some individuals may not give consent or withdraw it, risking missing high-quality data that might have been invaluable.

Considering the immense commercial benefits that can be derived from audio recordings, it is more reasonable for call centers to rely on legitimate interests. As will be explained in the following section, legitimate interest can and will justify call centers’ processing of audio recordings for training and service improvement purposes.

Apply a legitimate interest test 

When a call center relies on legitimate interest for voice recordings, it will assess if this processing satisfies the three-step test before processing begins:

Step 1: Identifying legitimate interest

Data controllers’ own commercial interests, individuals' or society’s interests can all fall under the "legitimate interest" umbrella. For example, call centers’ interest in reducing costs, providing better training to its staff and improving its customer services are all legitimate interests. Voice recordings can be used to train the staff about fraudulent calls so they are better at spotting such calls. This will serve the legitimate interests of both customers and call centers. Routing the call to the most competent person to solve customer problems quickly is legitimate interest of both customer and the call center.

Step 2: Necessity test

Call recording must be necessary for achieving the training and service improvement purpose. The questions to consider are: Is call recording necessary to achieve the staff training and service improvement purposes? Are there any less intrusive ways? Is it reasonable?

For training purposes, actual calls are the best resource for staff to learn about fraudulent call attempts and improve on their shortcomings, such as talking too fast. Other ways to train staff, such as making them read a textbook, would not be as efficient as the real hands-on experience of these calls.

Step 3: Do individual’s interests override call centers’ legitimate interests?

While doing this balancing exercise, a call center should consider the following factors:

  • Reasonable expectations of customers.
  • Any sensitive data.
  • Impact on customers.

Recording and analysis of calls help improve the service that customer receives; this tips balance in favor of call centers.

This requires call centers to ensure that appropriate security measures are implemented to protect voice recordings. For instance, if voice recordings involve sensitive data, such as health information, implementing pseudonymization techniques may weigh the balance in favor of the call centers.

If audio recordings are kept secure and staff listening to these calls signs a confidentiality agreement for recordings, the impact on customers will be minimum or none so that this factor will be in favor of the call center.

Call centers can rely on legitimate interests for recording calls for purposes of training and service improvement; consent isn’t required. Call centers should base audio recordings on legitimate interests instead of consent because it allows them to have more quality data to improve their training and customer services.  Finally, audio recordings for training and service improvement purposes satisfies the three-step legitimate interest test.

Photo by Petr Macháček on Unsplash

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