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.