UK Data Recording Obligations – Have You Got The Message?

In recent weeks, the use of encrypted messaging applications for business purposes has returned to the spotlight. In July 2023, legal challenges surrounding the disclosure of messages on devices used by former Prime Minister Boris Johnson made headlines in the context of the Covid-19 Inquiry. And only last week, the UK's energy regulator, the Office of Gas and Electricity Markets (Ofgem), issued a fine in respect of communications relating to wholesale energy trading made via an instant messaging platform on privately owned phones that were not appropriately recorded or retained – the first fine of its kind in the UK. In light of the augmented media attention, it may be that Ofgem and other UK regulators now look to apply additional scrutiny on the use, recording and retention of electronic communications, particularly via encrypted messaging applications such as Signal, Threema and WhatsApp.