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In the news: taping employees at work?

June 22, 2017

Contacts

Partners Samantha Turner
Special Advisors Sally McKechnie

Employment law Privacy and data protection Public law

Secret taping has been in the news a lot in the last few weeks. From the alleged secret taping in the Oval Office, to the recent problems for a junior National Party MP. With dictaphones in many offices and smartphones in many pockets, the ability to record conversations is everywhere. 

This raises an obvious question: is it lawful to tape employees at work? 

Yes, if they consent. And if you are going to record a conversation, you should have clear reasons for doing so. Recording a meeting can be useful, as it means both sides have an accurate record of what occurred. A large number of telephone-based agencies now routinely record their interactions with the public, and play recorded warnings to alert users that they will be recorded. 

Covert recordings are more difficult. It is not illegal under the Crimes Act or Privacy Act to record someone without their knowledge, as long as the recording is being done by one of the parties to the conversation. Nor is there necessarily anything unfair about doing so. However, under the Privacy Act an "agency" (which includes companies, businesses and clubs) should usually advise someone when they are collecting their personal information, and cannot collect information by "unfair means". So secret recordings can be much more difficult to justify under the Privacy Act, as there is a strong starting presumption that it is unfair. 

There needs to be a compelling reason that justifies the collection of personal information by covert recording. When is it justified? It depends on the context and the reason for the recording. The courts have found "public" conversations can be recorded without necessarily breaching the Privacy Act, and that covert taping was lawful, where a lawyer recorded a telephone conversation with the party on the other side of the case, without her knowledge. 

It may be that the law is expanding in this area. Recently, the Employment Relations Authority ruled that a recording taken on a cellphone covertly left in the room to record workplace gossiping was admissible in the circumstances. However, this decision did not look at the issue from the perspective of the Privacy Act or Crimes Act. 

If you have concerns about your organisation's practices, the Privacy Commission has some useful general guidance here or contact one of our experts to help.