CAN YOU RECORD A PERSONAL CONVERSATION?

It would be nice to live in a world where we could always trust everyone to always tell the truth. Sadly the risk of being caught out by lies or manipulated by statements or promises that are later denied can often drive people to consider recording communications or conversations for insurance. So what are the rules?

• If the conversation occurs over any form of telephone (land line or mobile) or by way of digital data transfer over the internet, intercepting the message (including stored data such as email, SMS or voice mail) is illegal and punishable by 2 years jail.
• Once the telephonic/electronic communication has reached its destination, the recipient however is free to record/retain the message any way they wish.
• If the conversation occurs face to face, anyone who is involved in the conversation may record it even without the consent or knowledge of the other participant(s)*. If the conversation however occurs between other persons, listening and recording that conversation without consent is illegal punishable by 2 years jail and/or a $5200 fine.
• Even if the conversation is recorded legally, subsequently attempting to publish or pass the conversation contents on to any other person is illegal without the consent of the other participant(s). The prohibition however can be lifted if the communication is in the course of legal proceedings and/or a Court deems that publication of the communication was necessary on public interest grounds.
• Any recording which is obtained or attempted to be used illegally cannot be admitted as evidence in any Court proceedings unless the Court rules that the evidence should be allowed on public policy grounds. If the Court proceedings are in the Family Court relating to children, the Court usually does allow the evidence to go in BUT this permission does not remove the risk of criminal charges still being laid for the illegality of the recording and in a good percentage of cases, using the recording as evidence can actually backfire and start to work against the case of the person making use of it.

In summary, generally speaking (at least in Qld) you are not committing any crime by secretly recording a conversation in which you are involved. Attempting to subsequently use that recording in any way though becomes risky and should not be attempted without legal advice.

*Note only in Qld

Michael Zande is a Queensland Law Society Accredited Family Law Specialist with over 25 years’ experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Michael for advice, phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.