In this day and age the impulse to reach for your phone and hit record feels routine. At the click of a button you can capture a tricky customer complaint or preserve what was agreed in a meeting. But Western Australia has some of the strictest recording laws in Australia and getting it wrong can expose you and your business to criminal penalties and serious reputational risk.
The law in Western Australia covers listening or optical surveillance devices. This means anything that can record, monitor or listen. For example it covers both smart phones and CCTV systems.
Is it private?
The first question to consider is whether the conversation or activity you’re recording is private.
The law defines a private conversation as one where the people involved in the conversation reasonably expect their words to be listened to only by themselves. For example, if someone is talking in a public place where their conversation may be overheard, then that wouldn’t be covered by the law.
Similarly, a private activity is one where anyone involved wants it to be seen only by themselves, like in a bathroom or bedroom. If someone could reasonably expect they would be seen or overheard by others, like in a shopping centre, then it’s unlikely to be private.
A common place to have conversations or meetings at work is online using tools like Zoom or Teams. The same rules apply to these meetings. If someone could reasonably expect the online meeting to be private then it probably is.
Consent is everything
It’s a criminal offence in WA to make a recording of a private conversation or private activity without everyone’s consent. Consent can be either express or implied.
Express consent is where everyone agrees to be recorded. This can be verbal or it could be in writing. Most online meeting tools, like Zoom and Teams, have the ability to record. When they start recording everyone entering the meeting needs to agree, this is express consent.
Implied consent depends on the context. If you’re aware something is being recorded and you continue then your consent may be implied. For example, if you’re on the phone and you’re told it’s being recorded and you continue the phone call.
It’s best to get someone’s consent before recording them or at the time. It isn’t generally acceptable to ask them to give their consent after you’ve recorded them.
There are some situations where you can record someone without having everyone’s consent. These include:
- If there is a warrant, court order or other legal authorisation for the recording;
- The recording is considered to be in the public interest, like if it’s to protect someone’s safety. Generally, a court will decide if something is in the public interest; or
- You have reasonable grounds to believe there is an imminent threat of violence or property damage.
Publishing and sharing recordings
Even if you lawfully obtain a recording, there are strict rules about what you can do with it. It’s against the law to publish a private conversation you have recorded without the consent of all parties to the conversation.
Publishing under the law means more than putting it in the paper or on Facebook. Publishing can also mean simply telling another person about the recorded conversation or activity. If you’re asked to share information about any recordings you have, even if it’s with a lawyer, you should get legal advice first to make sure you can.
What your business needs to know
There are several situations where you may inadvertently breach these laws, so it’s good to be aware of them.
1. Customer phone calls
If your business records customer calls for quality or training purposes, you must make sure people are aware and consent to the recording before the conversation begins. A standard ‘this call may be recorded’ message at the start of the call may be implied consent if the caller continues. However, if a caller objects then you must stop recording the call.
2. Workplace meetings
If you or an employee record a staff meeting, performance review, client negotiation, or any other workplace conversation they must get the consent of everyone in the meeting.
3. CCTV
Employers can install cameras in common areas, like offices, storefronts or warehouses but employees must be clearly informed. You can do this by having written notices near the cameras, for example. Also make sure that cameras are positioned to capture footage of your own premises only. Incidentally recording a public space may be legal, but deliberately pointing a camera at a neighbouring business or residence is not.
If your CCTV has microphones, you must either disable the audio feature or clearly inform and obtain permission from everyone who is recorded.
Recording someone without their permission is a serious offence. You could be personally fined up to $5,000 or be imprisoned for 12 months, or both. For a corporate, the fine is $50,000.
If you’d like to know more about what you can and can’t record, get in touch with Cullen Macleod, we’d be happy to help.
