When Kanye West’s recorded telephone conversation with Taylor Swift appeared online it almost broke the internet. Swift quickly appeared on Twitter accusing Kanye of secretly recording the call and wife Kim Kardashian of posting online. It’s now being suggested that the recording and publication could be in contravention of Californian laws on the use of a surveillance device.[1]

In an age when digital technology has made recording and publication so readily available, covertly recording conversations carries real risks for anyone who decides to do so.

For those in the media, the smartphone and tablet are often integral tools for compiling a story which can involve covertly recording audio or vision of private conversations and activities. Beyond the media, it has become increasingly common in commercial litigation to see covertly recorded material play a part in the evidence parties seek to rely upon in matters of dispute. These can range from disagreements between directors and shareholders to product liability claims.

In Australia, the State and Territory laws generally contain the prohibitions on the use of surveillance devices and material obtained by them. Given the growing ease with which people can record and publish material, we thought that it would be timely to provide a refresher on the laws on recording and publishing private matters in Australia. So we’ve put together the table below. It does not include the specific legislation in NSW and the ACT that applies to surveillance of employees in workplaces[2] or the Commonwealth legislation that is directed at recordings obtained by way of warrant.

Finally, we note that changes to the laws in SA are imminent.

We've created this Cheat Sheet which you can print and use as a checklist. Click here to view the PDF.