Use of smart phones to record conversations – is it legal?

This is an issue which commonly arises in employment disputes and legal proceedings, particularly Family Court proceedings.

 

The Surveillance Devices Act 2007 (NSW) makes it generally unlawful to use smart phones or other listening devices to secretly record private conversations. The penalty is a fine up to $11,000 for individuals, $55,000 for corporations and/or 5 years imprisonment.

 

However, it is lawful for a person to a private conversation to secretly record it where it is reasonably necessary for the protection of their own lawful interests, or the recording is not made for the purpose of communicating the conversation to others.

 

In employment scenarios, if a manager spoke with a group of employees at a team meeting, this would be unlikely to be a private conversation.  An employee could lawfully secretly record that meeting.  If a manager spoke with an employee in a closed office, it is probably unlawful for either to use a smart phone to secretly record that conversation, unless either of them were doing so in order to protect his or her rights.  Whether a recording has been made to protect a person’s own lawful interests has been interpreted by the Courts narrowly, to prevent the exception from swallowing the rule.

 

In Family Court cases, commonly one parent secretly records conversations with the other parent, or with family consultants or independent experts, and then tries to use the recorded conversation as evidence.  If the recording has been obtained improperly and in breach of the Surveillance Devices Act, the Court will decide whether to admit the evidence depending on the circumstances.  Often, the evidence is not admitted, achieving nothing in addition to exposing that parent to fines and imprisonment.

 

In March 2013, an 18 year old was arrested by police at the Mardi Gras in Sydney during which several officers told a photographer to stop filming the arrest.  The police had no legal power to do so.  Remember it is legal to take photographs and video images on smart phones and other recording devices of the police and incidents involving the police which take place in public spaces.

 

Samantha Peterson

Special Counsel

speterson@mtpartners.com.au

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