Surveillance Devices Law

Confluent Issues - Statutory Definitions 2

Definition of Private

The definition of a private conversation is further elucidated by the Federal Court in Ponzio v Multiplex[9] in which a conversation between two men was recorded by a third with the consent of only one party to the conversation. The court found that the reference in the relevant Act to ‘the parties’ requires that all parties intend it to be private, not just some. This rule is applicable to most jurisdictions, but some will deem a conversation or activity private if the circumstances indicate that even only one party intends it to be private, and are unconcerned with the imputed intentions of anyone else in the group.

 

A difficulty with this judgment is that it hinges on actual intentions, rather than what the circumstances imply. It may be argued in support of it that the fact of making a recording is part of the circumstances, but this judgement allows one party to eliminate all privacy by their sole act.

 

In respect not only of common law, but of statutory definitions themselves, a question remains as to how private an activity must be before the law considers it to be private. This matter remains without direct guidance. As such it is open to argument on commonsense principles.

Privacy Not Broken by Freedom of Parties to Divulge

A question may arise as to whether the freedom of the parties to report on a conversation to others eliminates privacy. This question was dealt with in Thomas v Nash[10] in which ‘private conversation’ is given an expansive meaning:

 

A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talk-back radio is not a private conversation.

Thus ‘private conversation’ is given a broad meaning. Note that while in all jurisdictions it is the circumstances in which a conversation or activity occurs that are the touchstone of privacy, but an intention to report to others may be evidenced objectively by the circumstances.

 

 

 

 

[9] Ponzio v Multiplex Limited [2005] FCA 1410 [91]. A case concerning the Surveillance Devices Act 1999 (Vic). (Another closely related rule implied in Ponzio  and other cases is discarded here as an incorrect and radical reinterpretation of the statute that would render a related law inoperative).

 

[10] Thomas & Anor v Nash [2010] SASC 153, [36]-[38]

[11] Thomas & Anor v Nash [2010] SASC 153, [37]-[38].