Is It Legal To Record Someone Committing A Crime?

Image: SMH

In the digital age of smartphones and instant messaging, it has never been easier to record and send videos and conversations involving other people. App features such as Instastory and Snapchat’s instantaneous video messaging abilities allow users to share real-time events and conversations to their friends and the public.

In many cases these secret videos spark significant public interest by providing a fly-on-the-wall perspective to an unusual event or crime. But is any of this legal? Let's find out.

Examples of viral videos depicting verbal assaults hurled at passengers on public transport have created rippling debate on social media and allowed authorities to identify and prosecute the individuals responsible.

Similarly, secret recordings have also fuelled celebrity dramas illustrated in Kim Kardashian’s 2016 Snapchat expose of Taylor Swift. These instances highlighted the issues of legality concerning recording someone without their knowledge.

However, despite how easy it is to press record, there are strict legal provisions that govern how we can record someone and subsequently use that recording.

Is it legal to record someone?

In New South Wales, the strict regulations of the Surveillance Devices Act 2007 (NSW) provides that it is generally illegal to record someone without their knowledge. This includes a prohibition on the installation or use of listening, optical and tracking surveillance devices to record private conversations or activities.

The Act stipulates that recorded conversations are only legal where permission has been obtained from all parties involved or where the principal party (“the recorder”) believes that the recording is “reasonably necessary” to protect their interests. However the recording cannot be published or recorded for the purposes of publication without consent. Additionally, the Act provides that it is also an offence to possess a recording of a conversation that has been illegally obtained either directly or indirectly by the person.

However in Queensland, Victoria and the Northern Territory, a person may legally secretly record a face to face conversation that they are having with someone else. However it is unlawful to use a listening device to overhear, record, monitor or listen to a private conversation that they are not a party to.

While at work?

Similarly, strict regulations apply for workplace surveillance under the The Workplace Surveillance Act 2005 (NSW) to prevent unlawful surveillance and monitoring of employee activities. These include a prohibition on all forms of covert surveillance and recordings undertaken without the knowledge of employees unless conducted under a Court-issued warrant.

Use of secret recordings

While it is generally illegal to record someone without their knowledge, there have been prominent examples where the use of secret recordings have been authorised by a Court issued warrant. Earlier this year, secret recordings of barbaric practices involved in the training of greyhounds prompted a Special Commission of Inquiry that catalysed the Baird Government to introduce the now-repealed ban on the industry.

Similarly, Australian Family Courts are reporting increased rates of covert recordings being submitted as evidence in disputes. While evidence that has been unlawfully recorded is generally inadmissible, there are situations where the Courts will find that such secret recordings have substantial probative value in family cases (i.e. to expose issues central to the wellbeing of children such as domestic violence or abuse.) To determine whether a recording can be admitted as evidence, the Court must decide if the desirability of admitting the evidence outweighs the undesirability of how it was obtained.

While recordings of private conversations and activities can often lend valuable evidence to highlight an injustice or perspective, it is important to consider the legislative regulations in place. Where a recording has been illegally obtained or published, heavy penalties may apply for the that Snapchat you’re about to send.

Tom Willis is a representative of LawPath, an online network of 700+ expert lawyers providing legal services to more than 15,000 Australian businesses.


Comments

    I've provided police evidence of a letterbox break in at my apartment block. The person I accused of committing an offence was aware that I was recording them, but did not provide consent to to speak. That said, reading through the NSW legislation mentioned above - it's not as plain-english as some NSW legislation, and apart from the below, which is relatively clear, I would potentially be in breach for my actions, as my letterbox was not broken in to, even though I had suspicion it may be.

    The Surveillance Devices Act 2007 (NSW) is complex, and has some exceptions for
    11.2.b ... an imminent threat of:
    (i) serious violence to persons or of substantial damage to property, or
    (ii) commission of a serious narcotics offence.

      Side-note, this was a Sunday after a 4-day weekend at Christmas 2014. So mail hadn't been delivered for 4 days, and the letterboxes were broken in to 2 days earlier (some were still broken). Dumb junkies

        Wow, u must live near me then. It's every damn week here regardless of long weekends. I caught the guy once doing it, he politely told me to fuck off even though I caught him red handed several times. Claims he's a satanist so yeah don't wan't to be offered to Baal by making a citizens arrest. Reported to police. No one gives a shit. Best to just get all your bills and statements via email now. And if you are expecting a letter or parcel, watch your letterbox like a hound the minute it arrives take out the mail.

    Is it legal? No

    Is any action gonna be taken against you? Not likely, If that person has already been charged with a crime, Pressing charges against the person who recorded it would be suicidal. These people usually have there reputation ruined in the media already (Particularly the racist/ Xenophobic rants) and then attempting to take action against the person who recorded you would ruin you for life.

    It is generally legal to record video of people in public. The prohibitions on optical recording in the Surveillance Act relate to restricting entry onto private property/vehicle to install, use or maintain an optical surveillance device. Of course, other legislation may impose restrictions, if, for example, you are recording topless bathers at the beach.

    As for recording audio, you are generally restricted from recording a "private conversation", with some exceptions. A private conversation is defined as:

    "private conversation" means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
    (a) by themselves, or

    (b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,
    but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

    So, basically, if someone is screaming obscenities on a bus they have no reasonable expectation that their conversation would be private and you are free to record them.

      If you are in a public place you've provided implied consent to being videoed or photographed, until you expressly withdraw consent by telling the person to stop.

        The first part of your statement is correct, the second is not. If you are in a public place with no reasonable expectation of privacy then you cannot withdraw consent as there is no consent to withdraw. You have no right to demand that someone stop taking photos of you in this situation.
        Of course, I am not saying that you should not stop if asked, just that there is no legal case for asking them to stop.

Join the discussion!

Trending Stories Right Now