Secret recording – is it illegal?

We are often asked whether it is legal to record conversations, whether consent is required and how such recordings can be used. The recent migration to videoconferencing in response to COVID-19 restrictions makes the answers to these questions even more relevant.

The Invasion of Privacy Act 1971 (Qld) states that a participant to a private conversation – whether in person, via telephone or other electronic communication (e.g. Zoom, Microsoft Teams, Messenger, WhatsApp or Houseparty) – can legally record the conversation in Queensland without any knowledge, notification or consent of the other party or parties to the conversation.

A “private conversation” is defined as words spoken by one person to another in circumstances indicating that those persons do not want others listening. This protection may be lost in circumstances where the participants in the conversation ought reasonably expect that their words may be overheard, recorded, monitored or listened to by some other person.

Recording is only legal where you are a party to the conversation. Surreptitiously recording the conversations of other people is in most cases illegal and can attract prosecution and fines. Additionally, illegally recorded conversations are not admissible as evidence in court.

Most methods of recording a conversation are legal under the Invasion of Privacy Act. However, the Telecommunications (Interception) Act 1979 (Cth) prohibits the use of devices located at the other end of the conversation, or that could be used to ‘intercept’ communications. For example, you could use a dictaphone or another phone to record a conversation at your end, but attaching a device to the other person’s phone would be illegal. The status of popular call recording apps (e.g. Zoom) is not concrete, but the Telecommunications (Interception) Act arguably allows recording by such apps providing they are not installed covertly on another’s phone.

Recording through a video-based application (e.g. Facetime, Skype) attracts additional stipulations under the Criminal Code 1899 (Qld). Where a party to a conversation is in a private place, or engaging in a private act, recording the video may be illegal, with potential additional penalties for subsequent distribution. As such, if you wish to record a conversation occurring via a video-based application, recording only the audio may be the safest option.

Assuming a conversation has been recorded legally, what can be done with that recording? You may be surprised to hear that such a recording, even if made without consent, can be legally distributed to the recorded parties. Sharing to parties outside the conversation remains illegal without all parties’ consent. A transcript of a legally recorded conversation attracts the same protection.

There are however several exceptions to this rule. The Invasion of Privacy Act permits external publication or communication of a recording:

1. in the course of legal proceedings;
2. as is reasonably necessary in the public interest, or for the protection of the lawful interests of the discloser;
3. to a person who is reasonably believed to have such an interest in the private conversation so as to make the communication or publication to them reasonable in the circumstances; or
4. by government officers, including police officers, in limited circumstances.

The first exception is broad and covers proceedings before any court, tribunal or person, including any inquiry, examination or arbitration in which evidence is, or may be given. Despite the provisions of the Invasion of Privacy Act, the Fair Work Commission has handed down a number of decisions against employees who have recorded conversations while at work, going so far as to classify such recording as a valid reason for dismissal.[1] As such, extreme care should be exercised by employees in such situations.

The second exception above is intended to encompass situations where recordings may disclose threats or admissions of crimes, particularly in domestic violence situations.

The third exception is rare, as warrants will usually be required before covert surveillance or recording is allowed.

Illegally recording private conversations in Queensland can lead to fines of up to $5,338.00 or imprisonment for up to 2 years. The penalties in most other Australian states and territories are significantly more onerous.

Although illegally recorded or shared private conversations may be subject to criminal sanctions, the law here attempts to strike a balance between the interests of those who have, often unknowingly, been recorded and the value of the recording as evidence.

If you find yourself at that intersection of the law not knowing where to go, turn to Clifford Gouldson’s Litigation and Dispute Resolution Team to find out where you stand.

[1] Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 (30 August 2018)