Surveillance Devices Law

Confluent Issues - Private Conversations/Activities

Privity and Circumstances

The private nature of an activity or conversation is a core concern in all jurisdictions. It is only private activities and conversations which are protected from monitoring and recording. The one exception is where Optical Devices of an activity is concerned in New South Wales.

 

Choice of Location or Circumstance

The context and physical place in which a conversation or activity occurs affects how easily it may be monitored or recorded. In so much as the parties may reasonably be expected to be aware of any compromises to their privacy, the context and place chosen furnishes evidence as to the parties’ consent or refusal to be monitored or recorded. Taking this as refusal or consent to be monitored or recorded, however, is immaterial as while the appearance of consent is an element in determining the lawfulness of device usage, it is the circumstances themselves which are provided by all the legislation to be the touchstone. The legislation makes only oblique reference to intentions, but it is the circumstances which are to be used as evidence of whether a conversation or activity is private.

 

A case in which this interpretation was established was R v Storey[1] in which a recording was made of a private conversation between three people, two of whom were conspiring to murder and one of whom intended to pass the recording to police. The context, rather than the inner intentions of each party was the key factor. Therefore it is not the parties’ actual inward intentions that are of interest, but whether their choice of circumstances in which to hold the conversation or activity implies an intention to maintain privacy....

 

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Visible Surveillance Devices

It is common to see video cameras situated in public places and in public view on private property. These cameras are ostensibly visible to all who pass by or enter the premises. With a minor exception addressed below, activities and conversations conducted in areas where members of the general public are free to come and go are not considered in any legislation to be private. Therefore they are not protected from surveillance...

 

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Privity and Conduct

Actions Taken to Exclude Others

A situation is conceivable where parties to a conversation or activity seek to create privacy by means of their conduct in a place where other people may be situated in the vicinity, or who may wander by. The circumstances of the activity or conversation do not themselves create privacy, but huddling and dropping voices or retiring to a less open spot, or having other persons actively keep passers-by away, the parties themselves may do so. If the parties manage to create a degree of secrecy then they have created a circle of privacy and distinguished those inside it – the parties – from those outside it – the non-parties. Most legislation is amenable to this interpretation by means of its focus on the circumstances rather than on surroundings. (Only the Victorian legislation, so far as Optical Devices outdoors is concerned, is not)....

 

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Express Consent

The giving of consent to be monitored or recorded is a condition which is used in all jurisdictions to permit the use of a surveillance device. However where another condition permissive of surveillance is met, the express denial of consent does not appear to have any effect through the statutes. There is no explicit rule against breaching the expressed intentions of parties and as stated above, the parties’ intentions as to privacy are to be deduced from the circumstances only....

 

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[1] R v Storey, Ivan Leonard [Ruling] [1994] VicSC 776 (Cummins J, unreported , 9 December 1994). Followed in R v East [2003] NTSC 42, [24]-[28].

Written by Andrew Pingree. All copyright, 2014-2016 vests in Civilaco Pty Ltd.

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