Privacy and the recording of conversations

Do you know if your conversation is being recorded?

With the increasing prevalence of smart phones and other electronic devices, more and more conversations in the workplace or school yard are being recorded, often surreptitiously.

In many cases it not unlawful for private conversations to be secretly recorded without the knowledge of all participants.  There is no obligation to obtain the prior consent of the other parties to the conversation.  The secret recording may potentially be used in subsequent legal proceedings.

As a general rule, in Queensland*:

1. it is illegal to record a telephone call with a device physically attached to the telephone – Telecommunications (Interception) Act 1979 (Cth);
2. it is legal for a telephone call to be secretly recorded by an external device (e.g. Dictaphone) by a person who is a party to the conversation – s 43, Invasion of Privacy Act 1971 (Qld);
3. it is legal for a face to face conversation to be secretly recorded by a person who is a party to the conversation – s 43, Invasion of Privacy Act 1971 (Qld);
4. the recording of a conversation by a person who is not a party to the conversation (whether by telephone or face to face) is illegal.

Who should be concerned about the risks of secret recordings?

There is no one group.  However, we are finding that schools in particular ought to be alert to the risk of secret recordings; whether by students recording other students or teachers, parents recording teachers (or even students!), or teachers recording conversations with school management.

In any workplace, an employer may find him/herself being recorded by an employee, particularly during any performance review.

What can you do to reduce the risk of secret recordings?

Even though it might be lawful underQueenslandlaw for conversations to be secretly recorded, this does not mean you need to tolerate secret recordings taking place in your school or workplace. 

Contact Corney & Lind to discuss the preparation of a Recording Device Policy for your school or workplace.

Note: *It is beyond the scope of this brief article to consider the provisions of Privacy legislation in the other States but a Recording Device Policy is still recommended whatever State or Territory you are based in.