TELEPHONE TAPING BY BANKS IN THE DUTCH CARIBBEAN
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 to this aspect of telephone taping.
In various countries there are laws protecting the privacy of individuals, which also cover the taping of incoming calls. In particular, several European countries have implemented legislation relating to the protection of personal data in their jurisdiction, based, in particular on 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).
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 places certain obligations on data collectors, providing requirements for data processing, the rights of data subjects and the transfer of data to other countries.
In absence of Netherlands Antilles legislation regarding telephone taping, a guideline could be sought in the personal data collection and privacy legislation in Europe, and in particular in the Netherlands. This would entail that the following requirements be met:
- prior notification (through documentation on opening an account and in the general terms and conditions);
- taping and use of the tape only for the specific purpose of recording instructions with respect to security transactions;
- tapes being kept in a form permitting identification of the individual, and
- 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
