Ask LH: Are Livescribe Recordings Ever Illegal?

Dear Lifehacker, Can you tell me what is the legal status for using a Livescribe smartpen in meetings, etc? The pen uses a specific note pad to take handwritten notes and it can also record what is said for later reference. I read somewhere that it's against the law to record conversations without permission. Should I be worried, and has anyone ever been charged for using one? Thanks, Shaquille

Dear Shaquille,

First off, the usual caveat about us not being lawyers or privacy law experts applies. If you want proper legal advice we suggest seeking out a professional. With that out of the way, here are the rules as we understand them.

As far as we know, nobody in Australia has ever been charged for recording conversations on a Livescribe pen. However, that doesn't mean it could never happen.

As we have discussed in the past, it is illegal in some states and territories to record a private conversation without prior consent. Instead, you are legally obligated to let the other party know that you intend to make a recording. You must also give them the option of refusal. Failure to do so is a violation of their privacy rights.

So does this mean it's illegal to make Livescribe recordings without permission? Not always. It all comes down to the type of situation you're using the pen in. (i.e. -- Are you using it as a notetaking tool or a spying device?)

For example, a business lecture or seminar is unlikely to cause any issues, as you're recording a public speech where there is no expectation of privacy. On the other hand, using a Livescribe pen during a private business meeting could land you in hot water -- especially if you record sensitive information when you're not part of the discussion.

Mind you, we doubt you'd be allowed to take hand-written notes in these circumstances, so it's a bit of a moot point. In short, it doesn't hurt to ask people before you start recording what they say. Regardless of the legalities, this is just good manners.

Cheers Lifehacker

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Comments

    @chris-jager Can you provide a reference to the applicable legislation covering "it is illegal in some states and territories to record a private conversation without prior consent"?

    The immediately referenced article cites the telecommunications act (which, when read in its entirety arguably only places restrictions on carriage service providers and telecommunications companies, not individuals party to the call), but is only relevant when discussing recording phone calls - not in-person recording devices.

    The second nested article references legislation pertaining to surveillance, citing "privacy legislation" - which often doesn't apply to individuals.

    Neither of these articles appears to cover to the legality of a private individual recording a conversation to which you are a physically present party.

      @xqx
      This page from a Victorian law firm provides a state by state summary of the relevant State legislation - http://www.mst.com.au/legality-of-secretly-recording-conversations-in-australia/

      Scroll down to section 3.

    xqx - Here in WA, I had "performance issues" conversations with a Manager where I was doing 80% of my to-do list and they were doing 10% or less. I ended up reading the following WA act & regs:
    Act - http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_946_homepage.html
    Regs - http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_2092_homepage.html
    By my reading, if it was a private conversation (it was) then I could only record the conversation without their knowledge if it was [Act, Clause 5(3)(d)] "reasonably necessary for the protection of the lawful interests" of mine - which I believed it was. I got a job elsewhere, but I was still proven right when 3 months later they frog marched my ex-workmate out the door who did not see the threat coming and didn't treat the "performance issues" conversations so seriously.

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