In the age of digital transparency and viral videos, we’ve all been privy to watching a covertly recorded video or conversation leaked with the intention of providing an “insider” perspective into a story.
For most of us, the desire to watch these secret recordings is not merely a case of curious voyeurism but more focused on our ever-increasing efforts to pursue the truth in light of controversial or public issues. When Kim Kardashian West leaked a secret video recording of Taylor Swift agreeing to Kanye West’s “Famous” lyrics, social media erupted in a swarm of ‘snake’ emojis with fans shocked over the unexpected disclosure. Similarly, while alleged secret recordings of fundraisers linked to the Presidential candidate Hillary Clinton fuelled widespread media speculation, her counterpart Donald Trump came under significant heat for comments made regarding women in a leaked conversation.
The legality of these recordings is a crucial aspect that requires further exploration. The recent Brisbane Supreme Court case over the death of Warriena Wright on her Tinder date with accused Gable Tostee depicted how secretly taped conversations can play a vital role as evidence in a trial. Importantly, was Mr Tostee within his right to make such a recording seemingly without the knowledge of Ms Wright?
Is it legal?
Under section 43 of the Privacy Act 1971 (Qld), a person may legally secretly record a face to face conversation you are having with someone. However it is unlawful to use a listening device to overhear, record, monitor or listen to a private conversation that you are not a party to. These restrictions are also applicable in the states of Victoria and the Northern Territory.
In New South Wales, the strict regulations of the Surveillance Devices Act 2007 (NSW) provide that recorded conversations are only legal where permission has been obtained from all parties involved or where the principal party 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 more stringent restrictions also apply in relation to workplace surveillance including recording and monitoring of conversations that occur by email, messages or orally.
In New South Wales, the Workplace Surveillance Act 2005 (NSW) expressly prohibits covert surveillance, meaning any secret surveillance that is undertaken without the knowledge of the employee(s). The Act strictly prohibits covert surveillance unless the employer obtains a ‘covert surveillance authority’ which has been issued by a Magistrate authorising the surveillance to determine whether the employee(s) are involved in unlawful activity at work.
Can secret recordings be used in Court?
Generally evidence that has been unlawfully recorded is inadmissible in all states. In most states, including New South Wales, certain circumstances may allow an admission of the recording if the Courts believe that the desirability of admitting the evidence outweighs the undesirability of how it was obtained.
In determining this, the Court may take into consideration factors including:
- the importance of the evidence;
- the nature of the offence;
- the gravity of the contravention in obtaining the evidence; and
- the difficulty of obtaining evidence without contravention of law.
Despite the value that a secret recordings can provide, it is important to remember that there are legislative provisions which govern if and how we can record and use covertly obtained footage. Remember to check your state regulations to avoid potential legal disputes before you hit ‘record’ and ‘share to Facebook’ on your smartphone!
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