When private isn’t really private

The recording of telephone conversations between businesses and their clients has become a common feature of modern business practice.  Of course, when the parties dispute the contents of these conversations, the recordings of these conversations can be very useful, probative, if not conclusive evidence  as to what was actually said.  However, the recording and use of these conversation may fall foul of various statutes which prohibit, without lawful excuse, the recording and use of the conversations for this purpose.1

The Tasmanian Criminal Court of Appeal recently considered the use of such a telephone recording and questioned whether such telephone calls actually constitute private communications.

In Dimech v Tasmania [2016] TASCCA 3,the Court was required to consider whether a telephone call with a betting agency operator constituted a private conversation for the purposes of the Listening Devices Act 1991 (Tas).   In deciding whether the conversation constituted a private conversation for the purposes of the Act, the Court accepted the view that the test is an objective test and held that the placing of a bet with a gambling telephone operator was not private; that is, objectively, such a conversation could not be considered as one where it would only be desired that the contents of the conversation were to be listened to by the operator and the caller.  This is even so in circumstances where the conversation contained private information.

The wording of most analog statutes dealing with the recording of telephone conversations is similar, if not identical to the Tasmanian Act.  Traditionally, in order to rely on such recordings, parties have sought to rely on consent to the recording, or other available grounds (such as protection of a lawful interest).

In circumstances where the terms of contracts, the taking out of policies of insurance, and other commercial arrangements are commonly arranged via recorded telephone conversations, this judgment may be useful support for litigants who seek to rely on the recordings of these telephone calls and avoid disputes as to whether appropriate consent was provided for the recording or a proper legal interest exists.  The judgment also shows that despite a conversation including private information, its purpose may not be considered private in the eyes of the law.

[1] For example, in NSW, see the Surveillance Devices Act 2007 (NSW)

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