This information is provided for Private Investigators such as myself; not for lawyers, police or other law enforcement, so it will not cover warrants, emergency interception or other similar topics. As a professional investigator, these questions come up fairly often – Can I make a call to someone and record it? Can I record incoming calls? Can these calls be used as evidence?
There are two kinds of legislation which you’ll need to understand when it comes to recording phone calls; telecommunications interception legislation (Commonwealth or ‘Federal’ law), and listening devices legislation (State law). You will need to understand both, and due to the latter, the resulting legality of call recording varies between states, even though telecommunications are generally a Commonwealth responsibility.
Telecommunications Interception Legislation
Under Section 7 of the Telecommunications (Interception and Access) Act 1979, you cannot lawfully intercept a communication passing over a telecommunications system. If that looks pretty clear, then you’ve probably not read much legislation in the past.
Breaking it down:
- Intercept includes listening to or recording, without the knowledge of the parties
- A communication means a conversation or message and can include data, images, sound, video, speech, etc.
- Passing over covers the time between when it is sent or transmitted at one end, and when it is accessible to the recipient at the other end.
a) Accessible to the recipient means it has been delivered, or it is under the control of the recipient, or it has been received
- A telecommunications system … is one which transmits communications electrically, but not solely by radio. (Ie. a phone network, but not CB radio)
The first option should be apparent from point (1) above – if you have the knowledge of the parties, then this section does not apply to you, so (subject to Listening Devices legislation in your state) you can lawfully record the call. You should note that it doesn’t say anything about consent, but instead uses the word knowledge.
Knowledge vs. Consent - What difference does it make?
Knowledge and Consent are quite different things. In this case, once you tell the other party to the conversation that the call is being recorded, then under this legislation it lawfully can be – even if they say “no” or tell you to stop*. (*Check the Listening Devices legislation in your state, which may, in effect, overrule this.) In the case of interception, you’re not asking them for their permission or consent – you’re just making them aware of the recording – and this is what makes it lawful.
If you’ve ever tried having an open conversation with someone after you just told them it’s being recorded, you’ll realise that it either takes a while for them to forget, and so open up to you, or they don’t forget, they remain guarded, and you never get the whole story.
What if you don’t want them to know the call is being recorded?
From the breakdown of section 7 above, you can see this section only applies to interceptions passing over a telecommunications system. This is a key point, because if a phone conversation is recorded after it is accessible to the recipient, then it’s not passing over a telecommunications system, so it’s not covered by section 7.
Passing over? How does that help?
It’s probably easiest to explain by using some examples of ways you might record a phone conversation:
- Using a speakerphone and making a recording in same room. As soon as the sound exits the speaker, it is available to you, and is therefore no longer passing over the telecommunications system, so it’s no longer covered by Section 7.
- Using a software device on your own computer, a digital recording of the call is made within your computer. Once the call enters your computer it is under your control, so it is no longer passing over the telecommunications system. Even if you hear the sound slightly after the recording is made, it was under your control from the moment it entered your system, which was obviously before you recorded it.
- Using recorder plugged into a phone such that the sound is diverted both to your ear and to the recorder – once the sound was under your control (after all, you had control enough control to divert it to your recorder), it’s no longer passing over a telecommunication system.
Note that these examples only apply when you’re a party to the conversation (ie. when you are the intended recipient of the message which is being recorded) and do not apply if you are recording a call between other people which you’re not a party to.
Why does my insurance company warn me that the call is being recorded?
Codes of practice (eg. Industry Guideline - Participant Monitoring of Voice Communications) guide organisations such as phone and insurance companies to alert people before recording calls. They are even told to allow people to opt-out of call recording (effectively setting up implied consent), while the legislation clearly doesn’t require this.
Listening Devices Laws
Beware: satisfying the federal legislative requirements so that you’re not ‘intercepting’ your own phone call could still leave you illegally recording it in your state.
Once you’re past the telecommunications interception legislation, you’re effectively in the same situation as someone recording a conversation on the street, or in a meeting room – you’re subject to relevant State and Territory based Listening Devices laws.
These laws vary from state to state:
- in some states when you’re a party to the conversation you can record it even without telling the other party (eg. Victoria)
- in other states, parties to the conversation need to consent to the recording (eg. NSW)
To check out your state and the rules which apply, you’ll need to check out this post: Listening Devices Laws in Australia.