What if someone records you?

In an era of ever-present smartphones and easy use of technology the ability to record people has become as simple as hitting a button. This fact became a topic of widespread media coverage in July of this year.

In July a debacle involving a recording of a private telephone conversation between Taylor Swift and Kanye West and its subsequent posting online by Kanye’s wife, Kim Kardashian, occurred. This incident has thrown surveillance and privacy laws under the spotlight.

Under the relevant NSW law a private conversation cannot be recorded unless everyone involved in the conversation consents. To do so could land you in prison for a maximum of 5 years. However if someone involved in the conversation believes it is reasonably necessary to have the conversation recorded for the protection of their lawful interests then it may be allowed.

• “Reasonably necessary” refers to what factors are there that a private person would need to make the recording rather than going to the police and initiating an investigation. For example if an incident is occurring immediately and there is no prospect of police intervention then recording the incident may “reasonably necessary”.

• “Lawful interests” has been held to mean where a dispute or incident has occurred or is occurring and there are likely to be differing accounts of that incident, a recording can be made to corroborate an account of that incident. It must be noted here that so far incidents this law has been applied to have usually involved serious criminal acts.

This article has been written with ordinary people taking recordings on their phones in mind and does not apply to actions taken by law enforcement personnel.

If you have further questions, please contact us at frank@franklaw.com.au.

This is not legal advice.