COBS 11.8 Recording telephone conversations and electronic communications

1This section applies to a firm:

1. (1)

   which carries out any of the following activities:

   1. (a)

      receiving client orders;

   2. (b)

      executing client orders;

   3. (c)

      arranging for client orders to be executed;

   4. (d)

      carrying out transactions on behalf of the firm, or another person in the firm's group, and which are part of the firm's trading activities or the trading activities of another person in the firm's group;

   5. (e)

      executing orders that result from decisions by the firm to deal on behalf of its client;

   6. (f)

      placing orders with other entities for execution that result from decisions by the firm to deal on behalf of its client;

2. (2)

   to the extent that the activities referred to in (1) relate to:

   1. (a)

      qualifying investments admitted to trading on a prescribed market;

   2. (b)

      qualifying investments in respect of which a request for admission to trading on such a market has been made;

   3. (c)

      investments which are related investments in relation to such qualifying investments.

This section does not apply to the carrying on of the following activities:

1. (1)

   activities carried on between operators, or between operators and depositories, of the same fund3 (when acting in that capacity);

   3
2. (2)

   corporate finance business;

3. (3)

   corporate treasury functions.

This section does not apply to the following firms or persons:

1. (1)

   a service company;

2. (2)

   a non-directive friendly society;

3. (3)

   a non-directive insurer;

4. (4)

   a UCITS qualifier.

This section applies only with respect to a firm's activities carried on from an establishment maintained by the firm in the United Kingdom.

A firm must take reasonable steps to record relevant telephone conversations, and keep a copy of relevant electronic communications, made with, sent from or received on equipment:

1. (1)

   provided by the firm to an employee or contractor; or

2. (2)

   the use of which by an employee or contractor has been sanctioned or permitted by the firm;

to enable that employee or contractor to carry out any of the activities referred to in COBS 11.8.1 R.

2A firm must take reasonable steps to prevent an employee or contractor from making, sending or receiving relevant telephone conversations and electronic communications on privately-owned equipment which the firm is unable to record or copy.

The obligation in COBS 11.8.5 R and COBS 11.8.5A R2does not apply to:

1. (1)

   [deleted]2

   2
2. (2)

   a discretionary investment manager, in respect of telephone conversations or electronic communications made with, sent to or received from a firm which the discretionary investment manager reasonably believes is subject to the recording obligation in COBS 11.8.5 R in respect of that conversation or communication; or

3. (3)

   a discretionary investment manager, in respect of telephone conversations or electronic communications made with, sent to or received from a person who is not subject to the recording obligation in COBS 11.8.5 R, provided that such telephone conversations or electronic communications are made with, sent to or received from such persons on an infrequent basis, and represent a small proportion of the total telephone conversations and electronic communications made, sent or received by the discretionary investment manager to which COBS 11.8.5 R apply.

For the purposes of COBS 11.8.5 R and COBS 11.8.5A R2 a relevant conversation or communication is any one of the following:

1. (1)

   a conversation or communication between an employee or contractor of the firm with a client, or when acting on behalf of a client, with another person, which concludes an agreement by the firm to carry out the activities referred to in COBS 11.8.1 R as principal or as agent;

2. (2)

   a conversation or communication between an employee or contractor of the firm with a professional client or an eligible counterparty, or when acting on behalf of a professional client or an eligible counterparty, with another person, which is carried on with a view to the conclusion of an agreement referred to in (1) above, and whether or not it is part of the same conversation or communication as in (1).

A firm must take reasonable steps to retain all records made by it under COBS 11.8.5 R:

1. (1)

   for a period of at least 6 months from the date the record was created;

2. (2)

   in a medium that allows the storage of the information in a way accessible for future reference by the FCA, and so that the following conditions are met:

   1. (a)

      the FCA must be able to access the records readily;

   2. (b)

      it must be possible for any corrections or other amendments, and the contents of the records prior to such corrections and amendments, to be easily ascertained;

   3. (c)

      it must not be possible for the records to be otherwise manipulated or altered.