Nearly every employee owns and uses smart phones in their day to day work activities such as checking work emails, search online for work related enquiry’s or making calls. So it is not surprising there may come a time when a smart phone is used to record a conversation or activity. This raises important issues such as consent and privacy.
Each state and territory have different legislation governing the use of electronic surveillance or monitoring of employees, meaning the application of the applicable legislation is inconsistent between state and territory jurisdictions.
In Western Australia, the Surveillance Devices Act 1998 (WA) forbids individuals from the use of:
- Any listening devices to record, monitor or listen to private conversations, and
- optical surveillance devices to record visually or observe a private activity.
A private conversation is defined as any conversation that occurs in circumstances where the parties involved reasonably expect the conversation to be heard only by themselves.
A private activity is defined as any activity that occurs in circumstances where parties desire the activity to be observed only by themselves. However, if the circumstance suggest that the parties ought to reasonably expect the activity or conversation might be overhead or observed then it is not private,
Both statutes impose strict procedures to which an employer must comply in obtaining permission to perform covert surveillance in the workplace. Therefore, the publication of information obtained from recordings of private activities or conversations without the consent of parties to the activity or conversation is prohibited under the Act.
Most of the legal issues mentioned above can be resolved by obtaining consent to record the parties whose activities or conversations are being filmed.
Here are some tips to gain consent:
- Obtain a written release from each person appearing involved in the activity or conversation, or;
- obtain a video recording of the person’s giving their consent
So, what happens if an employee uses their smart phones to record meetings or conversations?
If an employee secretly records a private meeting or conversation and express consent has not been given is unlawful and cannot be used as evidence.
However, there are a few circumstances where exceptions are made.
- each principal participant to the private conversation or activity consents to the recording, whether that consent is express or implied,
- a principal participant to the private conversation consents to the recording and the recording is reasonably necessary for the protection of the lawful interest of one of the principal participants,
- the recording made is in the public interest.
Implied consent may be given, for example, if the person is seen using their camera for recording purposes and no objection is given.
Want some assistance implementing a workplace policy or need some advice over the use of listening devices in the workplace? Contact our specialist team for a no obligation chat today.