A common question we hear from clients is, “Can I record my phone calls?” In many instances, it may be beneficial for one or both parties to have a record of what was said, discussed and agreed upon in the course of a phone call. These matters can range from dealing with a company or a client and wanting to keep a record of what was offered, accepted or how an issue was resolved, to separated parents dealing with care arrangements for their children. Other forms of communication are recorded and can be retrieved at a later date – such as email, text message and social media messaging – so surely you should be able to do the same with phone calls?
The short answer is ‘probably not but maybe yes’.
The starting point is the Surveillance Devices Act 2007 (NSW) (SDA) which deals with the recording of phone calls and doing certain things with the recording. The Act prohibits you from:
(a) recording private telephone conversations without the consent of the other party (section 7);
(b) having or keeping the recording (section 12); and
(c) giving or playing the recording to other people (section 11).
The penalty for each of these offences is quite severe. The maximum is a fine of $5,500 or 5 years imprisonment or both.
The other difficulty that you will encounter is that, in the event the other party says something incriminating, you likely won’t be able to use the recording. Section 138(1)(a) of the Evidence Act 1995 (NSW) excludes the use of illegally obtained evidence in court proceedings. So, if you have contravened sections 7, 11 or 12 of the SDA, the recording will most likely be considered inadmissible evidence and you won’t be able to use or rely upon it (that is, the judge will completely ignore it).
There are some obvious exceptions where the recording of conversations, and the keeping and/or providing of the recording, is legal. These include both parties consenting to the recording or legally authorised persons with a warrant allowing them to do so.
When you are on the phone to a big company and they say, “This phone call will be recorded, please let us know if you do not consent,” this is because it is considered a private phone call and to record it without your consent is, in most cases, illegal.
Other exceptions include where the recording has been made for the protection of the lawful interests of a party or is not made for the purpose of communicating or publishing the record. Each of these exclusions has been applied by the courts in differing and sometimes inconsistent ways, so you should exercise extreme caution if planning on relying upon either of them.
As an aside, you may recall from one of our blogs from October 2014 (“Take A Picture – What Can Be Posted Online?”) the general principle that it is legal to film someone in public and their consent is not required. It is interesting that the evolution of these seemingly parallel legal areas – film recording and audio recording – have resulted in two potentially irreconcilable positions. It can be illegal to record something someone has willingly and deliberately told you on the phone but it can then be legal for you to record a member of the public by video or photograph who never intended to interact with you in any capacity. A policy argument for another day, perhaps?
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.