This post from June 2017 has had a lot of search hits over the last couple of days in relation to the Jami-Lee Ross recording and threats of releasing more recordings, so worth a re-post:

The Todd Barclay saga, in which the Police decided not to prosecute Barclay for making audio recordings of an employee in his electorate office in Gore (the Police are currently reviewing that decision) has raised the issue of what can and can’t be legally recorded.

Video recordings are legal:

Surveillance video is common in public and in work places.

The Privacy Commission website states that it is “usually unfair to record someone without telling them”.

Can I record someone without telling them?

Whether making an audio or visual recording of someone without telling them will breach the Privacy Act will depend on the circumstances in each case. In particular, it will depend on who is making the recording and why they are making it.

If you are an individual and you are making a recording in relation to you own personal, domestic or household affairs (for instance you’re recording a personal conversation with a friend), there is an exception which says that, generally, the Privacy Act won’t apply to what you do.

However, if you collect, use or disclose personal information in a way which would be highly offensive to a reasonable person, this exception will not apply. In other words, someone could make a complaint about you.

If you are making the recording for any reason, other than your own domestic, personal or household affairs, the general rules about collection of personal information will apply. In particular, it’s usually unfair to record someone without telling them.

You should also keep in mind that there may be other laws which apply apart from the Privacy Act – for instance, recording a private conversation that you’re not involved in will often be a crime.

That seems to be what Barclay was investigated for.

On usually unfair to record someone without telling them:

Can an agency make a video or audio recording of me without telling me?

Generally speaking, an agency must tell you if it is collecting your personal information.

However, there are some cases where an agency could collect your information without telling you. For instance, it might not have to tell you it was collecting your information if this would undermine the agency’s purpose for collecting the information in the first place, or if it would endanger the safety of any individual.

If you believe an agency has collected your information without telling you, we suggest that you contact the agency and ask to speak to their privacy officer to see if you can resolve any concerns you have about this directly.

If you’re not able to resolve your concerns, and you believe you have suffered some sort of harm as a result of the collection of your information, you can make a complaint to us.

Or make a complaint to the Police, as Glenys Dickson did in the Barclay case.

Andrew Geddis comments on this in It’s not the crime, it’s the coverup

…it’s not an offence to record yourself in conversation with others, even if they don’t know you are doing so. Nor is it an offence to record other people without their knowledge if they are not engaged in a “private communication”.

But the allegation against Barclay is that he left a dictaphone running when he wasn’t in his office so as to record what Dickson was saying in conversations with constituents.

Also in Police take another look at Barclay secret recording investigation

Geddis said the alleged breach in law on which Barclay was investigated needed to tick three boxes to be proved.

The first was there needed to be a recording with an “interception device”, as the law phrased. In this case, he said, the “device” was alleged to be a dictaphone.

Then it needed to be proved it was a private conversation – in this case, said to be the electorate office where Dickson worked.

The third element was proving that the recording was made intentionally, he said.

“If you could prove all three elements, the offence carries a jailable offence of up to two years.”

Conviction to the two-year point is the trigger which forces MPs to resign from Parliament.

Steven Price at Media Law Journal (in reference to the Bradley Ambrose case):

It’s a crime to intentionally intercept a private communication using an interception device. A private communication is one that is made under circumstances that may reasonably taken to indicate that any party to it desires it remain private, but:

does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

Although a battalion of journalists were about a metre away behind a window, let’s assume that Key and Banks couldn’t reasonably expect it to be overheard, and that the circumstances indicate that both desired their conversation to remain private.

In an electorate office if the conversation was in an open office where others were present and could hear it then it may not be private. But if Dickson was the only person present then it could be private.

The only issue, then, is whether the interception was intentional. On the paper’s account, it was inadvertent. In fact, it says, the cameraman tried to retrieve his recorder before the conversation but was stopped by Key’s security folk, and didn’t know that the recording was even happening. Now, I don’t know anything more than has been reported. But I wonder whether there is room for doubt about whether the cameraman genuinely didn’t know that the conversation was being recorded.

If it could be established that he did know, then he has committed an offence.

Bill English has said (in the now public police statement) “I had a conversation with him regarding Glenys Dickson leaving his office and he said to me that he had recordings of her criticising him”.

Barclay has said “I have read and Mr English’s statement to the police and accept it.”

“Recordings” is plural. It could be difficult claiming that more than one recording was accidental.

We will find out next week what the Police decide to do and whether they re-open the case or not.