What are the laws around recording people?

by Peter Griffin / 16 July, 2017
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Developments in technology make it cheaper and easier to record what people are saying and doing, but the law still offers protection against subsequent “offensive” use. 

The smartphone with which you summon your Uber ride doubles as a digital audio recorder. A phone recording capacity comes as standard these days and mobiles are increasingly the device of choice for disgruntled employees looking to get their boss on the record or – as alleged in the case of the unfortunate dictaphone-equipped MP for Clutha-Southland – vice versa.

Many recordings made on smartphones have been admitted as evidence in Employment Relations Authority cases. It seems perfectly natural to some to place your phone on the table in front of you at a meeting, with no indication – particularly if it is face down – that it is recording.

The smartphone add-on market has produced a whole host of gadgets that double as eavesdropping tools. The Soundhawk Bluetooth headset ($410) is intended as a sort of entry-level hearing aid, but it lets you receive audio from a small wireless microphone you can leave somewhere else in the office.

Connected wirelessly to your phone, it records what the remote mic picks up.

Secret Recorder is a $2 app for my Samsung Gear smartwatch that starts recording audio with just a tap on the watch face, with no phone involved. Who would suspect an innocent-looking watch was listening in?

Cheap, miniaturised video recorders are also now easily accessible. Online retailers are peddling gadgets that would impress a modern spy: a smoke detector with built-in motion-activated camera costs just $60; the VideoPen Recorder ($32) houses a tiny, high-resolution camera in an unassuming black pen.

A pen capable of recording.

But the proliferation of snooping tech doesn’t make the use of it to covertly record others any more legal. In fact, Ministry of Justice statistics show a growing number of convictions in recent years for clandestine recordings.

In one case from 2014, a New Plymouth man pleaded guilty to making intimate video recordings in an Event Cinema unisex toilet, concealing tiny cameras in a smoke detector and a clothes hook. As cameras have got smaller, easier to hide and operate remotely, revenge porn and up-skirt cam videos have become more common.

Internet-enabled so-called nanny cams, such as a Wi-Fi Dropcam, allow you to check on the babysitter or a tradie at work in your home while you’re away. A feed from these types of devices can stream live to other computers and smartphones.

Your intentions may be good, but again you may run foul of the Privacy Act and the Crimes Act, particularly if you record people without their knowledge and in private areas of your house, such as the bathroom, or a live-in nanny’s bedroom. Home rental service Airbnb requires that hosts disclose in their website listings any surveillance devices in the home and whether they are operating. It also bans them from private spaces.

A smartwatch that can record.

Drones, once high-tech military equipment and now available for less than $100, have extended the reach of snoopers. Newer ones, equipped with high-resolution cameras, can follow pre-programmed flightpaths using GPS co-ordinates.

Recording people through a window in the privacy of their home or naked sunbathing in their fenced garden is likely to get you into trouble; operating a drone hovering 50m up is no different from pointing a camera over the fence.

The Privacy Commissioner advises that the new technology is covered by existing law: filming in public is allowed and news media are generally exempt from the provisions of the Privacy Act, though if footage is subsequently used in a way that would be regarded as “highly offensive”, there might be grounds for complaint.

Technology opens up all sorts of new avenues to listen to and observe others from afar, often for legitimate purposes.

But if there’s a lesson from the Barclay affair for all of us, it is that you should think twice before even claiming to have recorded someone – it may cause more grief than it’s worth.

This article was first published in the July 8, 2017 issue of the New Zealand Listener.

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