Using your recording

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Can I use the recording on social media?

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The law talks about this as ‘publishing’ your recording.

If the recording was made in a public place or of a public conversation or activity, you could legally share it - but it is important to look at the next section, ‘What should I think about before sharing my recording?’ first.
 

If the recording is of a private conversation or activity, generally, the law says you need the permission of all the parties before sharing or publishing it. Some circumstances are okay, but special rules apply, and the laws differ across Australia. You should get legal advice before using the recording.
 

Look at the section ‘Can I record the police on private property?’ to learn more about ‘public’ and ‘private’ conversations.
 

If a court has ordered that something not be published, and you go ahead and publish it anyway, you will probably be in contempt of court. This serious offence can result in significant fines or even imprisonment.
 

There are some things that you cannot publish as they are against the law, such as any sexually explicit images of people under 18 (including yourself); publishing the identity of a child in state care (a ward of the state); the identity of a sexual assault victim; the identity of parties in Family Court proceedings; matters that could prejudice a jury; and matters of national security. This list is not exhaustive, and you might be committing a serious offence if you publish things that it is against the law to publish. These laws vary around Australia, so seeking legal advice is essential.

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What should I think about before sharing my recording?

Once you have shared your recording either on social media or by sending it to someone else, you lose control of it. Other people can now share, post, and even edit your recording.

How would you feel if it went viral? Think about who else is in the recording. How would they feel seeing it on Facebook or YouTube? Does it embarrass anyone or show someone committing a crime? Are there cultural issues you need to consider? Is it against the law to publish? (See ‘Can I use the recording on social media?’ above for more information).

 

Make sure you think carefully before sharing a recording because once it is out there, it is forever. In most cases, you’ll be much better off if you ensure it is stored safely.

 

Of course, the main reason for recording people in authority is to hold them accountable for their actions. Publishing the recording is unlikely to do that, and it could cause more trouble for you. Usually, it will be much more sensible to keep the recording safe, secure and private so it is ready to use as evidence. Even though you may be filming an innocent person, their life or job prospects might be affected by having an interaction with the police published on the web.
 

How can my recording be used as evidence?

There are some important things to remember when making a recording if you want it to be useful evidence:

• Only speak to identify who you are, the other people are, where you are, and perhaps the date and time. You want the recording to speak for itself. If you describe what is happening, you may talk over important parts of a conversation.

• If you can record identifying details, then do so. This may include number plates, police badges, street signs, clocks and watches or other information that helps establish where you are and who else is there.

• Save the original somewhere safe in the highest resolution possible. You want to make sure that you still have the original to use as evidence if you edit or share a version. Saving a video to a third-party website such as YouTube doesn’t guarantee it will be kept forever. YouTube can and does delete material from its site.

 

If you have made a recording that is evidence of an offence, that recording might be subpoenaed by a court. This means you have to produce it, or you may be held in ‘contempt of court’. This can lead to significant fines or even imprisonment. In some states, possessing a recording of a confession or admission made to police is also an offence. If these situations apply to you, please seek legal advice.

Remember that even if your recording was not lawful, for example, because it was of a private conversation and made without consent, there are still some circumstances where a court will accept it as evidence. That use is entirely separate from whether you might have committed an offence by making the recording.

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What if someone records me without consent, or shares a recording of me?

Generally, the person who made the recording owns the recording and its ‘copyright’. In many cases, they can use or publish it however they want. However, there are important exceptions to this rule.

 

They can include stalking, nuisance and harassment, breach of confidence (or privacy), upskirting and revenge porn.

 

These types of unlawful recordings are never okay. If this happens to you, or you see it happening to someone else, notify the police and seek legal help.

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