Is it Lawful to Record and Publish a Private Conversation?

Tuesday, April 1, 2019

Recording Conversations

We often see in movies and televisions shows a plot device involving a recorded conversation. Perhaps it’s used as a means of blackmail or to prove the innocence of the good guys. We only condone the latter.
We live in an age where people carry around recording devices in their pockets and handbags. Many phones are continually listening to everything we say. Isn’t that right Siri?

At times our clients will inform us that they are in possession of a recorded conversation they think will help their case. As a general rule, we recommend that our clients maintain written communication where possible. It’s always easier to produce a document in court than to have multiple parties give their account of what was said.

But what if you have recorded a conversation relating to an issue with another party? What does the law say about the recording and publishing of conversations, particularly private conversations? When can they be used, if at all?

Invasion of Privacy Act

The Invasion of Privacy Act 1971 (Qld) (the Act) is the relevant legislation in Queensland on matters concerning the recording and publishing of conversations.

A Private Conversation

The issue that needs to be looked at first is whether the conversation in question is a “private conversation.”

Under the Act, whether a conversation is private will be determined by the circumstances surrounding it. The question is whether the conversation should only be heard or listened to by the parties to that conversation. To make this assessment, the courts will consider:

  • the parties to the conversation;
  • the location of the parties having the conversation; and
  • the content of the conversation.

For clarity, the Act states that you are a party to a private conversation if you are the recipient or the speaker of words in a private conversation.

An appropriate example would be where two company directors are having a conversation in a closed office regarding the failings of their company and the likely redundancies of employees. Because of the parties involved, the location, and the content of the conversation (including its effects if made public), this would be a “private conversation.” By contrast, two employees discussing their mutual dislike for a television show in the office lunch room would not be considered a private conversation. No one is forcing you to watch that show Sharon!

Recording a Private Conversation

For the purposes of the Act, recording a private conversation includes the use of a listening device.

The Act has a broad interpretation of a listening device. Essentially, a listening device is anything capable of recording, monitoring or listening to a private conversation — excluding hearing aids (in case you were wondering). Such devices are rampant in our day-to-day living and it is not hard to imagine that someone could record your conversation without you knowing.

Recording a private conversation is an offence under the Act. Where a person is guilty of using a listening device to record a private conversation, they may be required to pay a fine or be sentenced to a maximum of two years in prison. However, there are exceptions that allow you to record a private conversation. The most notable being that you are party to that private conversation.

Further exceptions excuse government entities who record and listen to private conversations in the performance of their duties. Also, you will not be liable for unintentionally overhearing a private conversation over the telephone. Perhaps save such conversations for when you get off the bus next time.

Publishing a Recorded Private Conversation

Further offences may apply where a person, who has unlawfully recorded a private conversation, then communicates or publishes that conversation to someone else — unless the publication or communication is made to a person who was a party to the private conversation or with the consent of a party to the conversation.

Telecommunications (Interception and Access) Act

The Telecommunications (Interception and Access) Act 1979 (Cth) (the Telecommunications Act) expands the liability of individuals who record conversations, with specific application to telecommunication devices and networks.

Under the Telecommunications Act, unless you are the intended recipient, you are prohibited from recording a telephone conversation. However the Telecommunications Act goes beyond just telephone conversations and includes speech, data, text images or signals.

Although the Telecommunications Act imposes strict prohibitions on the recording of telephone conversations and messages, there are parties who are exempt from liability for obvious reasons. They include:

  • emergency services, such as fire, police and medical;
  • government bodies involved with monitoring and preventing criminal activities; and
  • employees working for network carriers who need to record conversations in the course of performing their job.

Where a person is guilty of an offence under the Telecommunications Act, the aggrieved party can apply to the courts for civil remedies, including general damages and injunctions.

Conclusion

In short, if you are not a party to a conversation, or you do not have the consent of a party to that conversation, you cannot record or publish that conversation. This includes the recording of phone conversations and communications over telecommunication networks.

How We Can Help

Quinn & Scattini Lawyers expertly assist parties to litigation and disputes. We can advise you on the correct procedures for obtaining and using recorded conversations and other evidence.

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