Recording a private conversation without consent
Technology today is amazing. We have smartphones almost immediately available – they are light, portable and small are often used to record events… but how does that ease and regularity of use sit with an individual’s right to privacy?
In New South Wales, the Surveillance Devices Act 2007 regulates the use of listening devices. That Act also covers the use of data surveillance, optical surveillance devices and tracking devices. Breaches of the Act can lead to criminal charges.
What is a listening device?
The Act defines a listening device as:
“any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear”
so it clearly includes mobile phones, GoPros and video cameras.
It is an offence under s.7 to knowingly install, use or cause to be used or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party or to record a private conversation to which the person is a party.
There are some exceptions to this however, such as if:
- all principal parties to the private conversation expressly or impliedly consent to its use, or
- you are a principal party to the private conversation and:
- it is reasonably necessary to protect your lawful interests; or
- you do not intend to communicate or publish what was recorded or a report of it to anyone who was not party to the private conversation
The onus of proof for establishing an exception lies on the party seeking to establish the exception, and that onus is on the balance of probabilities.
Law enforcement officials can use listening devices in a range of circumstances including where they have a warrant from a Judge or Magistrate; if they don’t have a warrant but there is a serious or urgent matter requiring its use but not enough time to get a warrant; or where a police officer wearing a visible body worn video device etc.
Even if in Court proceedings, the exception to the rule is not found to apply, it might still (but in certain circumstances only) be possible to have the recording, or evidence based on it such as a transcript of what was said, admitted into evidence under the improperly obtained evidence rules in s.138 of the Evidence Act 1995 (NSW).
What is a private conversation?
A private conversation is conversation where it can be reasonably assumed that those involved in the conversation do not want the conversation to be overheard by others, that is, it is more informal or not public. A private conversation is not private if the people in the conversation can reasonably expect the conversation to be overheard by others.
The best course is generally not to record a private conversation without consent unless it is absolutely necessary.
The penalty for individuals for a serious breach of the Act is an $11,000 fine or up to 5 years in prison.
A person who intentionally or recklessly communicates or publishes the contents of a private conversation which could endanger the health or safety of someone, or prejudice an investigation, faces a maximum penalty of 7 years in prison.
For corporations, offences under the Act attract a maximum fine of up to $55,000.
This information is general only and is not a substitute for proper legal advice.