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Posted: 14 Dec 2012 04:58 AM PST

A phrase that jumped out at me in the course of the whole phone prank episode surrounding the Duchess of Cambridge's recent stay in hospital, and the tragic death of one of the nurses involved was, "reasonably foreseeable." I think it was a representative of the Australian radio station involved who said that it was not "reasonably foreseeable" that the prank might end up in causing someone to commit suicide.

Reasonable Foreseeability

Reasonable foreseeability is a legal term used in the context of negligence. A person will only be found liable in certain cases if there is a reasonable foreseeability between their negligent act and the thing that it caused. However, in the context of this tragic event it's a bit of a red herring.

Of course it was completely unforeseeable that this stupid prank might cause someone to react in this way. And it would be foolish to condemn someone for engaging in a bit of fun, no matter how tasteless, because of an extraordinary outcome.

Broadcast without consent

But the problem with this whole matter was not necessarily the prank phone call. If it had ended with that, in all likelihood it would have had no more serious consequences than some red faces and a bit of awkwardness. The problem arose when the prank call, which was recorded without the knowledge of one of the participants, was broadcast on the airwaves without that person's consent. Now the question of legal liability becomes a lot clearer. It shouldn't have been done and to do so was wrong. This should have been obvious to anyone making a decision on airing the piece. It wasn't a live broadcast; it had been recorded beforehand and replayed, over and over again as it turned out.

The situation here might be complicated a little by the fact that the broadcast was in Australia and the recording was made in England. But the international dimension does not really do anything to take away the fact that the lady did not know she was being recorded and she did not give her consent to the use of the recording in the broadcast.

Recording telephone conversations

And it begs a very important question. Where do you stand in relation to the recording of your telephone conversations? More and more in every aspect of what we do, the calls in which we are dealing with organisations and perhaps in which our customers deal with us are being recorded. Where does that leave us?

Data Protection Act

In Ireland the Data Protection Act is the most obvious starting point. Personal data is defined by that Act as data relating to a living individual who is or can be identified either from the data or from it in conjunction with other information. The Irish Data Protection Commissioner has taken the view that recordings of telephone calls are personal data for the purposes of the Act.

Personal data must be obtained fairly for a legitimate purpose and it can only be used for the purpose for which it was obtained. So straight away we can see that prank calls are going to run into difficulties here. But what about in legitimate business, can you record calls and how can you use the recordings?

Legitimate purpose

Well, first off as far as data protection goes you've got to act fairly and for a specified legitimate purpose. And while a legitimate business purpose may exist for recording calls in certain business critical areas, this does not mean you will be justified in recording all calls. The ubiquitous "calls may be recorded for quality and training purposes" is by no means a magic phrase that enables the indiscriminate recording of every call.

Customer agreements

If you are making agreements with your customers over the phone, you may need to record the call to have a record of the agreement, this is perfectly legitimate. But if you do, you should say so. Callers should be clearly informed that recording is taking place and that they can choose whether or not to continue with the call if they are not happy to do so.

There is at least one case where a call recorded without the consent of the other party has been admitted in proceedings to prove what was said. However, Data Protection issues were not raised and it was a case of involving an individual rather than an organisation who was seeking to rely on the call.

Conclusion

If your business depended on it, you'd want a little more certainty. Better to make sure that if you do need to record calls you've made it clear exactly when you're doing so and why. Then if you ever do need to use them for the purpose that was intended, you'll be an awful lot more confident in doing so.

On the other hand if you are an individual on the other end of the line dealing with a business recording your call, remember that what you've said is your personal data, and that means you have rights about it.

Have you any concerns over the Data Protection Act or reasonable foreseeability?

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Are Mobile Payments In The Plans For Your Business?

Posted: 14 Dec 2012 03:31 AM PST

As the end of another year approaches, many small business owners will sit down and review their 2012 efforts.

For some, the year will have brought more revenue, less hassles and most importantly, more customers. Others, however, will lament that they should or could have done more to make it a successful one.

Whichever group you fall into, the coming New Year offers up opportunities to expand on your efforts and results over the last 12 months.

One area that you should surely review is did you offer your customers the best options possible for shopping with you? Among the items to check include speed and ease with which customers could buy from you.

Why Mobile Payments?

If your small business has not been offering mobile payments up to now, is 2013 the time for you to become more mobile?

Research firm Gartner points out that the potential is there for mobile payments to hit approximately $617 billion in sales by 2016. In this year alone, mobile payments were projected to top $171.5 billion.

With such huge numbers being amassed, is your lack of mobility preventing your company from taking its piece of the mobile pie? This question is especially relevant given the fact that many customers tend to buy on impulse; offering mobile payments makes it easier and quicker for them to shop on the spur of the moment.

In the event you feel like becoming more mobile, keep the following in mind:

# 1. Invest the search time

Finding the right mobile payments provider is critical so that you are not hit with excessive fees (see more below regarding costs) and bad customer service. Shop around and examine the customer service track record and financial stability of each provider, seeing who best fits your needs. Google the name of each provider and see if they have a backlog of customer complaints, along with running their name past the Better Business Bureau.

# 2. Costs

While you stand to gain long term from offering your customers mobile payments, you do not in the short term want to compile large expenses. Check with each provider regarding monthly fees (charges can accrue for not meeting a monthly minimum for transactions), as some will also charge for the card-scanning hardware. Lastly, look into what you may face with percent-of-sale and per-transaction costs. If too many fees begin to add up, you have to question if that specific provider is worth it or not.

# 3. Provider options

Which features you get from a provider matter too, so look to see how the various items could impact your business. Do you want print out receipts for your customers or will you immediately email them the data? Do you want real-time tracking sales and on the spot crediting for your account. How about things such as a free app and reader, along with linking your transactions to the software used to manage your business? With a variety of features, finding the provider who offers the best ones for you.

# 4. Security matters

Finally, offering customers mobile payments means nothing if they are not secure. If the system in place for your company's mobile payments is not secure, customer data could be exposed, meaning you may lose business because customers don't have faith in you. You need a provider that can maintain data security, be it in the form of encrypting card details right when it is scanned to those who utilize a PIN-number security process to protect credit card transmissions.

If one of your goals is to be more mobile in 2013, make it pay off for you and your small business.

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