Recording Devices in the Digital Age

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In April 2018, the ABC published an article with respect to a photo taken in early March of a couple kissing on the Woody Point Jetty in Queensland.

The ABC article (http://www.abc.net.au/news/2018-04-16/what-law-says-about-taking-photos-of-people-in-public/9641488) discussed the legal ramifications of taking photos of others without consent. It discussed the laws applicable to the issue from an everyday perspective.

There are in fact two Queensland Acts of Parliament that deal with the taking of photographs or making recordings without the permission of the person/s depicted. Section 227A of the Criminal Code (Qld) 1899 creates an offence of observations or recordings in breach of privacy. Furthermore Section 43 of the Invasion of Privacy Act (Qld) 1971 creates an offence with respect to the prohibited use of listening devices.
 

Section 227A of the Criminal Code 1899 (Qld)

Section 227A of the Criminal Code, creates an offence where a person visually records another, in circumstances where a reasonable adult would expect to be afforded privacy – without the person’s consent and when the other person is in a private place or is engaged in a private act and the recording is made for the purpose of recording a private act.

Whilst the offence carries a maximum penalty of only two years imprisonment, the consequences to a person charged with such an offence, whereby a conviction may be recorded, could be devastating. It is noteworthy that the section imposes an abridged version of the reasonable person test, namely, that the recording must not be in circumstances where a reasonable adult would expect to be afforded privacy. The test is different from the “reasonable person test” as a reasonable adult is superimposed irrespective of the subject of the recordings being a child who may be unfazed by being recorded.

Whilst the photo depicting the couple kissing on the Woody Point Jetty could not be said to have been taken in circumstances where that couple could reasonably expect to have been afforded privacy, one would wonder as to whether or not a more intimate action would come within the definition of section 227A of the Criminal Code.
 

Section 43 of the Invasion of Privacy Act (Qld)

Section 43 of the Invasion of Privacy Act prohibits a person using a listening device to record, monitor or listen to a private conversation. It does not apply where a person is a party to such a conversation, or to circumstances where the recording is unintentional.

The definition as provided by Section 4 of the Act includes a device capable of being used to record or listen to a private conversation. Section 43 does not provide a qualification of a party holding a reasonable expectation of being afforded privacy. The definition applying to an audio recording is therefore broader than offered by Section 227 of the Criminal Code.

Practitioners should be mindful when advising clients of the use of dash camera footage where a camera captures audio, as well as visual footage. An obvious grey area would arise where an UBER driver utilises a dash camera to record video and audio for insurance purposes, but then desires to use the recording for another purpose. A driver uploading a video file including audio of a conversation had between two passengers could well find themselves in breach of sections 43 and 44 of the Invasion of Privacy Act.


Written by: Terry Morgans

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.

 

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