Recording Private Conversations – Is it lawful?

recording private conversationsThe Moreton Bay Council recently announced that they have rolled out 330 CCTV cameras that have the capacity to record private conversations.

In 2013 the then Queensland Transport Minister sought to introduce audio recording in taxi cabs. This raises the question, “Is it ok to record other peoples conversations?”

Invasion of Privacy Act

Section 43 of the Invasion of Privacy Act provides a maximum penalty of two years imprisonment where the person uses a listening device to overhear, record, monitor or listen to a private conversation.  The legislation clearly intends that private conversations will be kept private.  There are a number of exceptions such as the unintentional hearing of a private conversation by means of a telephone.

Importantly, where the person using the listening device is a party to the private conversation the conduct can be lawful.  In some situations parties have been known to record the conversation without advising the other party.

In relation to the Council there can be no dispute that they are not a party to the conversation. Accordingly many are suggesting that the conduct is unlawful.

Communicating private conversations

The Council has suggested that they will provide the audio to the police in relevant situations.  This is again covered by the Invasion of Privacy Act.  Section 44 provides a maximum of two years imprisonment where a person communicates a private conversation…  The phone conversation would also likely be inadmissible pursuant to section 46 of the Act.

Reasonable expectation

The turning point for the council may be the issue of whether there is a reasonable expectation that the words are overheard or recorded.  The act provides the following definition of ‘private conversation’.

Any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.

If there were clear signs indicating that conversations were being recorded, monitored or listened to, the Council may need to establish that there was no reasonable expectation of privacy.

There are difference rules for organisations and individuals.  We have all had the telemarketers run through their consent spiel.  There are also different rules throughout Australia.  While two people on a telephone in Qld might be acceptable, if one of the parties is interstate the rules can differ.  If you are considering recording a conversation, it would be prudent to seek advice.

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