Tracking Devices

It is unlawful under section 7 to attach, install or use a tracking device, or to cause another to do so, without the consent of the person to be tracked or the person in control of the object. Section 3 defines a tracking device as a device capable of being used to determine the geographical location of a person or object. A breach of this section is a criminal offence punishable by a fine or imprisonment for up to one year.

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Sub-sections 2 and 3 list exceptions, none of which are applicable to civilian law enforcement. This means that the use of a tracking device on an investigation subject without their express or implied consent is unlawful for private investigators and for any other member of the public.

 

Further discussion on the law of tracking devices and its scope of application is presented under the heading, Tracking Devices in the Confluent Issues section, above.

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Publication and Communication

Section 9 prohibits the publication and communication of private conversations or activities, or records of such, which have come to the person’s knowledge as a result of the use of a surveillance device. This is an offence punishable by a fine.

 

Sub-section 2 provides exceptions including:

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a) where the publication or communication is made

(vi)    for the protection of the lawful interests of the person making the publication or communication

(vii)   as per two separate provisions elsewhere, for the protection of the lawful interests of a principal party, and that party consented to the use of the surveillance device.

(viii)  under Part V, which includes section 26 and concerns the use of surveillance devices in the public interest.

(ix)    in the course of legal proceedings.

b) Where the communication or publication is made to a police force member regarding any matter or seriousness.

c) Where publication is done in response to an imminent threat of serious violence to persons or of substantial damage to property.

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Sub-section 3 states that sub-section 2 only applies where:

 

a) The publication or communication is not more than is reasonably necessary:

     i) In the public interest

     ii) For the protection of the lawful interests of the person making the publication or communication.

b) The publication or communication is made to a person who has such an interest in the matter as to make publication or communication reasonable.

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A variety of concepts are raised here making for a problematically complex set of conditions under which publication or communication can be allowed. Most of those presented here are discussed under their own sub-headings under Confluent Issues, above. The exception for the course of legal proceedings is likely to be where a matter has been lodged with a court or some other legal body, rather than when litigation is merely under contemplation.

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Notification upon Finding a Surveillance Device

​Section 37 requires that any person discovering a surveillance device attached or installed in premises or on an object or vehicle must report the discovery immediately to the police. Failure to do this will result in a fine or imprisonment for up to 12 months.

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