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Is it Illegal to Video Record Someone Without Consent?

Navigating the laws around filming or recording someone without their consent can be tricky. Is it illegal to video record someone without consent in Australia? It often depends on several factors, such as who is doing the filming, what is being filmed, where it’s happening, and the intended purpose of the recording.

 Various state and federal laws apply, which might restrict the use of such recordings if they were obtained without the individual’s consent. So, what does the law say about this? Let’s break it down for you.

The rules about filming can change significantly depending on where you are. Are you in a public area or a private one? Let’s break it down. A public space is somewhere that everyone has access to, like a park, street, or sidewalk. 

Think of it as the everyday places where people come and go freely without restrictions. On the other hand, a private space is owned by someone who can control who enters and leaves. This includes homes, stores, sports arenas, shopping centres, schools, and similar locations. Each place has its own set of rules that must be respected. 

Understanding these distinctions is crucial because the legal boundaries for filming can vary widely between public and private areas. For instance, is it illegal to video record someone without consent in Australia? You may need explicit permission to film in many private spaces, whereas public areas might have more lenient rules.

Filming in Public Spaces for Personal Use

The law, under the Surveillance Devices Act, is pretty relaxed when it comes to filming in public areas for your own personal use. You don’t need anyone’s permission to capture footage in public spaces like parks, streets, or iconic spots like Circular Quay or the Sydney Opera House for your memories through mobile phones.

This aligns with personal use, anything not intended for commercial gain. So, snapping a video of your favourite spots around the city to share with friends or keep as travel memento? No problem.

However, things change if you’re filming or potentially recording private conversations, with a commercial angle. Filming for business purposes, whether to promote a product or service or to generate income in any form, necessitates you to get the appropriate permissions. This usually means obtaining a license if you’re filming on property managed by local councils or the NSW Government, such as national parks or state buildings.

Ignoring these rules can lead to fines from the Australian Competition and Consumer Commission (ACCC) or copyright infringement issues. Following the correct procedures under the Surveillance Devices Act 2007 and  Filming Approval Act ensures you get the necessary licences and stay compliant with the law. At Kpt Legal provides services, to help you navigate these legal requirements seamlessly.

Filming is only legal when you’re on private property if the property owner gives you the green light. If they ask you to stop or leave, you must comply. Ignoring their request can land you in hot water with civil and criminal trespass penalties.

Taking it a step further, you could face serious charges if you’re using hidden cameras or other covert methods to record someone without their knowledge. According to section 547C of the Crimes Act 1900, it’s illegal to “peep or pry” on someone. This means you can’t hang around buildings intending to spy on others.

While the law doesn’t specifically define “peeping” or “prying,” generally, “peeping” means looking through a small gap, like between blinds, and “prying” refers to any intrusive observation into someone’s private space. Getting caught doing this can result in a fine of up to $220 or a three-month stint in jail.

Recording someone during a private act without their consent is a serious crime under section 91K of the Crimes Act 1900, punishable by up to 2 years in prison.

For the prosecution to secure a conviction, they must demonstrate beyond reasonable doubt that you:

  1. Recorded another individual,
  2. Captured them engaged in a private act,
  3. Filmed for your sexual arousal or gratification,
  4. Lacked consent to film,
  5. Knew you did not have their consent.

The penalties are even harsher if the person filmed is under 16 or if you installed a device specifically for filming, potentially leading to a maximum of 5 years in prison.

A “private act” can include:

  • Being in a state of undress,
  • Using the toilet, showering, or bathing,
  • Engaging in sexual activities not typically performed in public,
  • Or any similar intimate activity.

Section 91P of the Crimes Act 1900 deals with the serious offence of recording an intimate image without consent.

This law is broken if someone intentionally captures an intimate image of another person without their permission, knowing they don’t have consent or being reckless about whether consent was given.

An “intimate image” is defined as:

  • A photo or video of someone’s private parts or they engaged in a private act, where a reasonable person would expect privacy.
  • An image that has been digitally altered to appear as if it shows someone’s private parts or them in a private act, again, where privacy is expected.

The penalties for this offence are severe, with fines up to $1,100, imprisonment for up to 3 years, or both.

Surveilling or Stalking: What You Need to Know

While the police and licensed private investigators can legally surveil or follow someone, this privilege doesn’t extend to civilians. If you’re caught stalking or intimidating someone, you could face serious charges.

Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 makes it clear: stalking or intimidating someone with the intent to cause them fear of physical or mental harm is a criminal offence. The penalties can be harsh, with up to 5 years in prison and/or a $5,500 fine.

So, what exactly is considered stalking?

  • Following someone around
  • Watching or hanging around their home, workplace, or places they regularly visit
  • Repeatedly contacting them via the Internet or other technology

And intimidation?

  • Harassing or molesting someone
  • Approaching them through calls, texts, or emails to make them fear for their safety
  • Making someone fear for their safety or property
  • Causing a domestic partner to fear injury

For the prosecution to secure a conviction, they must prove beyond a reasonable doubt that you:

  1. Stalked or intimidated the person
  2. Intended to cause them fear of physical or mental harm

It’s important to note that the actual fear the victim feels isn’t crucial; what matters is your intent to cause that fear.

Preparing for Court

If you’re facing court over allegations of voyeurism, peeping, prying, or recording an intimate image without consent, you might be wondering, is it illegal to video record someone without consent in Australia? It’s crucial to get professional legal advice. At KPT Legal, our experienced defence lawyers are here to help you understand your options and devise the best strategy for your case.

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