What are the laws around recording people?

by Peter Griffin / 16 July, 2017
RelatedArticlesModule - Recording


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.


Fall from grace: Why some mistakes end celebrities' careers when others don't
89980 2018-04-26 00:00:00Z Social issues

Fall from grace: Why some mistakes end celebrities…

by Paul Thomas

In a world a-twitter, small infractions attract hysterical reactions, and abject confession is the only currency with which redemption can be bought.

Read more
Investing after the Global Financial Crisis
90010 2018-04-26 00:00:00Z Investment

Investing after the Global Financial Crisis

by Noted

Fixed interest markets have changed - managers can now pick from a wider range of investments, which is good news for the everyday investor.

Read more
The 3 types of cheating in sport
90100 2018-04-26 00:00:00Z Sport

The 3 types of cheating in sport

by Paul Thomas

When it comes to cheating, there are the rules – and then there are the alternative rules.

Read more
Win a double pass to An Evening with Hillary Rodham Clinton in Auckland
90019 2018-04-26 00:00:00Z Win

Win a double pass to An Evening with Hillary Rodha…

by Noted

An illuminating insight into Secretary Clinton's experience as a woman in politics, you could be seeing her live at Auckland's Spark Arena on May 7.

Read more
The Kiwi marine who didn't make it home from Vietnam
89575 2018-04-25 00:00:00Z History

The Kiwi marine who didn't make it home from Vietn…

by Ben Stanley

Jim Lott was one of two New Zealanders who died serving in the United States military in the Vietnam War.

Read more
How a giant chalk kiwi came to be carved into an English hill
89890 2018-04-25 00:00:00Z History

How a giant chalk kiwi came to be carved into an E…

by Russell Baillie

Now a source of pride, the Bulford Kiwi on Beacon Hill was originally hatched from a post-WWI mutiny.

Read more
Remembering and misremembering World War I
90016 2018-04-25 00:00:00Z History

Remembering and misremembering World War I

by Sam Finnemore

A soldier with miraculous recall and the story of the unknown Anzac bring home WWI’s reality.

Read more
The Guernsey Literary and Potato Peel Pie Society – movie review
89994 2018-04-25 00:00:00Z Movies

The Guernsey Literary and Potato Peel Pie Society …

by Russell Baillie

A tale of bookworms in occupied Guernsey makes for a safe film.

Read more