There are numerous reasons that you might want to secretly record a phone conversation. That’s not new and we all know that sometimes this technology might help us in many ways. It could be as serious as getting someone to admit to a crime, or as innocuous as making a prank call for a ‘podcast’. But is recording a phone conversation without a stated consent legal? The answer depends on the Australian state or territory you live in.
Breaches of Privacy Law
Telemarketers and Marketing Geniuses don’t waste valuable time explaining that your conversation might be recorded for training purposes out of the goodness of their heart — to refrain from doing so is usually a breach of privacy law. And we all know we don’t want to breach any Law and as well that sometimes we’re all fed up with warning of that sort.
As the Office of the Australian Information Commissioner (OAIC) explains on its website:
Recording of telephone conversations is a matter tightly controlled by law. The federal Telecommunications (Interception and Access) Act 1979 and State and Territory listening devices laws may both apply to this activity. The general rule is that the call may not be recorded. There are exceptions to these rules in very limited circumstances including where a warrant applies. If a call is to be recorded or monitored, an organisation must tell you at the beginning of the conversation so that you have the chance either to end the call, or to ask to be transferred to another line where monitoring or recording does not take place if this is available.
The above excerpt relates specifically to organisations, but it can also apply to individuals. However, the actual rules differ from state to state. Currently, it is not strictly illegal to record private phone conversations without consent in Victoria, Queensland or the Northern Territory.
In the ACT, NSW, South Australia, Tasmania and Western Australia, the rules are much stricter. As we have mentioned in the past, you can’t even use a security camera to surreptitiously record conversations in NSW: Consent must always be given. Interestingly, while it is legal in Queensland to secretly record a phone conversation to an external device (such as a portable dictaphone), it is illegal to do the same thing using a device physically attached to the telephone.
These laws start to get murkier when you introduce factors like ‘public interest’ and implied consent. It’s the sort of offense that tends to be assessed on a case-by-case basis. For example, secretly recording a politician just to embarrass them will probably land you in hot water, but doing it to successfully uncover fraud would be less likely to end in a conviction.
Of course, the above examples aren’t going to apply to most people reading this. Simple good manners suggest it’s worth pointing out to your caller that you’ve making a recording. In short: if you don’t ask permission, you might be breaking the law, and if permission is denied, you shouldn’t continue.
If you’re concerned about a specific situation, the first step is to seek actual legal advice. We would advise against secretly recording your spouse during a messy divorce: even if you get them to admit to something it probably won’t hold up in a court of law.
Did you just catch yourself wondering if something was legal or not? Contact us or let us know and we may be able to answer it in our next Technology and Security topic?