It's common to see taxis fitted with cameras. It's a security measure for identifying unruly or violent passengers and to record the faces of people who jump out without paying the fare. Since Uber came on the scene, more and more private car owners are becoming drivers for hire in their spare time. Some of these drivers have fitted video surveillance equipment in their cars, but is that legal? Let's find out.
Video recordings fall under optical surveillance and the laws that govern that vary from state to state. Bear in mind that even if a state does allow for video surveillance under certain circumstances, it's still illegal to use it for criminal activities such as filming somebody in a bathroom or naked without their knowledge. Publishing the recordings without consent is also prohibited. Today, we will only look at the legality around recording video footage; we've already covered voice recordings of private conversations and you can find the article here.
In NSW, according to the Surveillance Devices Act 2007, it's an offence to use an optical surveillance device if the installation or maintenance of it involves entering a premise or vehicle without the express permission of the owner.
SmartSafe.org.au notes that:
"As long as the installation, use or maintenance of an optical surveillance device does not involve the unauthorised entry onto/into a premise or vehicle or unauthorised interference with a vehicle or other object, it is not an offence under section 8 of this Act."
In Victoria, Western Australia and the Northern Territory, you can't record video of private activity, which refers to activity that is carried on inside a building, when it's reasonable to assume the people involved don't want to be seen by others. There are some exceptions, according to private investigator company Privatei:
- If you are a party to the activity, surveillance by you is not restricted. No consent by the other parties is required.
- If the activity is happening outside, surveillance is not restricted.
- If the parties should reasonably expect they may be seen by people other than themselves, surveillance is not restricted.
- If the circumstances indicate the parties don’t care if they are seen, surveillance is not restricted.
It's a bit tricky to determine whether an Uber driver video recording a passenger is legal in those states. We're inclined to think that being in a car means that it's reasonable to assume that you expect to be seen by others.
In Queensland, you need consent to record somebody if they are in a private place or if they are engaging in a private act. However, a car is not considered a private place.
South Australia, the ACT and Tasmania have no regulations in relation to video-only surveillance.
There is also the matter of responsible disposal of the data to consider. Usually, these kind of things would be covered by the Privacy Act but that only applies to organisations with an annual turnover of more than $3 million. It's hard to say whether Uber drivers fall into this category; sure, they work under the Uber brand but they are essentially working for themselves.
We asked Uber whether it informs drivers on their rights and responsibilities when it comes to operating surveillance cameras in their vehicles and have yet to receive a response. We will update the article accordingly if we do hear back from Uber.
Thank you to our reader Alicia for sending us this question!
Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.