Privacy 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.

 

An example of a private situation would be where a meeting takes place in a locked room or in a room with a notice to keep out attached to a closed door. A situation a step toward non-private would be a conversation at one end of an unlocked room with other people located at the other end. Consider also the presence of a professional of any kind performing work duties in relation to listening to a group discussion – the conversation may still remain private with respect to the listener’s obligations and rights but while they are not participating in the discussion they are being allowed into the privacy of the matter. The legislation of different States and Territories will treat this situation differently. If the said professional is known to the parties to be a journalist or an investigator acting for a non-party, then privacy is eliminated by the obvious consequence that reporting will occur to outsiders.

 

A question arises as to a conversation or activity held in a public area with people coming and going. None of them are engaged as a listener or spectator, but the conversation or activity can be overheard or observed coherently if any person should stop and pay attention. While privacy could be maintained by the fact that no person in the crowd is able to make proper sense of what is ensuing between the parties, the fact that someone could stop and observe or overhear should mean that the parties do not have privacy such as to protect their conversation or activity. The risk they have taken with their privacy cannot be ignored.

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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. This includes private property which is fully open to any member of the public. Further to this, by being in a location on private property with restricted access, and which is obviously subject to surveillance, a person gives implied consent by entering or remaining there. Under all the legislation, implied consent is sufficient to permit the use of a surveillance device, both optical and audio.

 

Privacy 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).

 

But taking this a step further, where a conversation or activity is held in a situation where there is constant movement of others, and/or ample distraction, coupled with the anonymity of the parties, such as occurs often in public places, some may argue that privacy is achieved for all intents and purposes. Parties may act so as to conceal much of their conversation or activity, and no one passer-by in the crowd may have a real opportunity to get a clear understanding of what is said or done. Such a circumstance, however, presents such great risk to privacy that it would be unrealistic to treat any conversation or act as private and to neglect the intention of Parliament (as appears in all jurisdictions) to draw a distinction between private and non-private circumstances, merely because of the conduct of the parties.

 

There is no basis to argue that privacy actually intended, in spite of appearances, is to be upheld by the law in public areas. Carelessness in choosing a situation for a secret discussion or activity deprives the parties of protection from surveillance. It is this argument that legitimises the use of closed circuit television monitoring in places like shopping centres.

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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 rule against breaching the intentions or wishes of parties. A demand to switch off a camera, for instance, when one is a party to the given activity, or in a place where tourists are filming and taking photographs is immaterial to the law. So too, a comment signifying a wish for privacy whilst talking in a reverberating reception area where other persons are seated close by and overhearing, is not adverse to the lawfulness of covert recording.

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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].

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