Planning to have a challenging conversation with someone and considering it might be beneficial to record it for evidence?
Are you referring to a colleague, a partner, or a neighbor?
Let’s examine the law’s position on recording conversations and how to safeguard your best interests legally.
Recording in New South Wales
In broad terms, it’s unlawful to record a private discussion, even if you’re a participant. To be more precise, it’s legally prohibited to set up, operate, initiate usage, or keep a listening device for the purpose of recording a private conversation.
Let’s clarify some of these legal definitions:
- A conversation is deemed private if it can be reasonably assumed that no one else would overhear the individuals involved in the conversation.
- Listening device: This refers to any equipment that can be employed to eavesdrop, record, surveil, or listen to spoken conversations or words, but does not include hearing aids or comparable devices designed to help combat hearing impairment.
- Record: The NSW legislation defines recording as encompassing audio, visual (without audio), and visual (with audio) formats.
Exceptions
However, there are exceptions to this general legal principle. The two primary exceptions to the offense that the general public might encounter include accidental recording of private conversations or instances aimed at protecting one’s legal rights.
Unintentional accidents
No offence has occurred if a private conversation is recorded unintentionally.
This may happen if someone was recording audio for a different legitimate reason and unintentionally recorded a private conversation as a result.
Scenario 1 – Recording in a classroom:
John, a university student, was given permission by his professor to record class lectures using personal devices. Opting to use his mobile phone for this purpose, he believed it would prove useful due to the occasional chatter of fellow students during class. However, upon replaying the audio on the train journey home, John realized that not only had he captured the lecture, but also a conversation between Tracey and Stacey, two classmates seated in front of him.
Did John commit the crime of recording a private conversation illegally?
John unintentionally recorded Tracey and Stacey’s conversation while trying to record his professor. Moreover, it’s debatable whether their conversation meets the legal definition of a private conversation.
Protecting legal interests
People often contemplate recording private conversations to “safeguard their legal interests.” This could be an allowable exception, although it is quite intricate.
This exception primarily consists of two main components:
- This exception only applies if the individual who is recording the private conversation is directly participating in it, and
- the recording must be “reasonably necessary for the protection of the lawful interests” of this person.
What would be considered the “lawful interests” of a person? There is no short and quick answer to this question. In 2014, it was held by the Supreme Court of New South Wales (Court of Criminal Appeal) that a child complainant in a sexual assault who covertly recorded a private conversation with the adult accused did not break the law, as it was in the child’s lawful interest to do so. The recording was used as evidence within the court proceedings.
Important note: If you find yourself in a position and believe it is in your “lawful interests” to record a private conversation, do not automatically assume you have a free pass to do so. It is best to consult a legal practitioner first to ensure you are in the clear. Otherwise, you may be shooting yourself in the foot, as we will see below.
Consequences for illegally recording conversations
Recording a private conversation (without the legal exception mentioned earlier) is an offence and will result in consequences.
Penalties
An individual who illegally records a conversation faces a maximum penalty of 100 penalty units or 5 years in jail, or both. However, if a corporation commits this offense, the maximum penalty is raised to 500 penalty units.
Currently, in NSW, a penalty unit is set at $110.00 per unit.
This implies that an individual could be subjected to a fine of up to $11,000.00, a corporation up to $50,000.00, or face a prison term of up to 5 years, or even both.
Inadmissibility of evidence
In most cases, evidence collected unlawfully cannot be used in court. This means, if a recording of a private conversation is considered illegal, it is not admissible to support any legal claim.
However, there is a technical exception to this rule of evidence. Courts can admit the evidence if its desirability for admission outweighs its undesirable illegal nature.
Important note: It is best to consult a legal practitioner if you think the recording of a private conversation serves your lawful interests and you want it to be used as evidence.
Popular questions
What to do if I have been illegally recorded?
If you suspect that your private conversation was unlawfully taped, you can politely ask the person to erase the recording.
Is it illegal to video-record someone in NSW?
The legislation regulating recording also encompasses video recording in its definition, as previously mentioned. Hence, if audio recording a private conversation is deemed illegal in a particular situation, video recording would also be considered illegal.
Can I secretly record a conversation over the phone or online?
The law remains constant. Numerous mobile phone and computer applications can surreptitiously record audio or video calls. However, recording a private conversation without the other party’s knowledge is considered an offense.
Can I video or audio record my interactions with members of the New South Wales Police Force?
The law provides an exception to recording interactions with members of the NSW Police Force. However, this is only permitted when related to the commission of an offence.
Thus, if a police officer approaches you in public concerning a crime they believe you’ve committed, you have the right to record the encounter, and the officer cannot object.
Key Takeaways
In NSW, the general guideline is that secretly recording a private conversation is illegal.
If you believe it is in your interest to record a private conversation, speak to a Sydney criminal lawyer first, to ensure you do not commit an offence and that the evidence is admissible.
If the police question you regarding an alleged offense, you have the right to record the interaction.