This is the most frequent question I get asked by our clients. With smartphones and tablets, it is tempting for people to record private conversations on their mobile phones and/or tablets.
Well in short, the answer is NO, it is NOT Legal in absence of consent (express or implied). Even possessing or keeping a record of a private conversation and publishing or distributing to any person a record of a private conversation is also NOT Legal.
In NSW, the Surveillance Device Act 2007 prohibits the following:
• recording of conversations without consent of the parties;
• Possessing or keeping a record of a private conversation; and
• Publishing or distributing to any person a record of a private conversation
Under this ACT, it is an offence punishable by up to 5 years’ imprisonment and/or fine. The Act states:
“A person must not knowingly install, use or cause to be used or maintain a listening device—
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
Private conversation means “any words spoken by one person to another in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only’ by themselves, or by a person with consent of all the parties to the conversation.
It is legal to record a private conversation if all parties or a principal party to the conversation consents to the listening device being so used and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party.
PS – This is for general advice
By Ajay Singh
Principal Solicitor LL.M
Parramatta Criminal Lawyers