CCTV: who can watch whom under the law?

In the past few days, CCTV footage has been at the centre of two major news stories.

The first, at the Northern Territory’s Don Dale Youth Detention Centre, showed the shocking treatment meted out to juvenile detainees in 2014.

The second came from South Australia, showing the abuse of an elderly dementia patient in a nursing home. A camera had been secretly (and illegally) placed by the patient’s daughter because she was suspicious of maltreatment.

Every day, the media, lawyers and police are handed public and private CCTV footage, along with recordings from mobile phones. These usually contain displays of grossly inappropriate and often illegal behaviour. People provide the data for any number of reasons, including to report corruption, to defend themselves or simply to embarrass malefactors.

These tapes can be very useful in solving serious crimes, too, such as the CCTV footage captured in September 2012 in Melbourne when Jill Meagher was killed by a man who approached her in the street late at night. The emergence of the footage (from a private shopfront), which showed Meagher walking from a bar along the street towards her home and being met by a man, known to police, at 1:40AM, was crucial to solving the case.

The volume of material filmed overtly and covertly grows by the day. It is so ubiquitous that people now appear frustrated when there is no footage of events that have captured public attention.

The vast majority of CCTV cameras are owned and monitored by private security companies, or by private householders and businesses, so we have no idea how many are in operation in Australia. We do know that there are more active mobile phone accounts (most of which have a recording capability) than there are people. YouTube, Instagram, Twitter, Facebook and other social media brands now provide welcome platforms for the immediate worldwide distribution of recordings and images.

These advances bring with them opportunities for people to manage and respond effectively to crises and crime risks, and expose injustices. But they raise substantial privacy concerns.

What the law says

Who can film, and in what circumstances? How much of this material can then be broadcast or used as evidence in the courts? The answers are not easy to find.

The laws regulating filming and distributing are many and varied. They operate at state and federal level. They are a mixture of legislation and common law. They differ from jurisdiction to jurisdiction.

Three jurisdictions – the ACT, Queensland and Tasmania – still only mention listening devices, not cameras. Some parliaments have not addressed or even contemplated the new technologies, such as drones that allow filming to occur from the sky – let alone the social media platforms that carry the footage.

Having said that, there are some questions we can answer.

Can people be filmed using visible CCTV and phone cameras without their permission? The answer is “yes”, where they have been warned of the presence of cameras, and even if not, if there is a demonstrable public interest in such surveillance (for example, to ensure that patrons in casino gaming rooms are not cheating, or to ensure public safety in crowded walkways). There must also be no evidence of misuse, or malicious or defamatory intent.

Far more problematic is covert surveillance. The common law does not prohibit such filming, but the tapes may be inadmissible as legal evidence if the person under scrutiny can prove to a court that there are public policy reasons for not allowing filming of this type.

Legislation, too, has been emerging in the last 20 years, but it is a dog’s breakfast.

In Western Australia, Victoria, Northern Territory, South Australia and New South Wales, covert surveillance by taping conversations or filming liaisons is now properly regulated. Typically there is a “public interest” defence, but that term is not defined and will rely on judicial interpretation as cases come before the courts.

Publishing and communicating a verbal recording is permitted in Queensland, NSW, WA and the ACT – but only if it occurs “in the course of legal proceedings”. In some legislation, there is scope for private investigators to use surveillance devices more broadly, especially where they are acting to support police or a recognised crime fighting authority.

In NSW employees are protected against unwarranted workplace surveillance by legislation, too. It is unlawful to engage in covert surveillance unless a magistrate has given appropriate authorisation.

It is an offence in all jurisdictions to broadcast without permission a recording of a covertly taped conversation or publish the information from it. But the publicised cases where prosecutions have proceeded are few and far between.

The various offences – and numerous and contradictory defences – in each jurisdiction illustrate the awkward consequences of state and territory governments failing to pursue uniform legislation. The variety of approaches leaves the law complicated, inconsistent and thus unsatisfactory.

Where to from here?

On the one hand, there is the strong sense that people indulge in a privacy-benefit trade-off, and calculate that their lives, and safety, can be enhanced by additional surveillance, whether overt or covert. This is especially true if it exposes events that demand exposure.

On the other hand, it may be that individuals will soon develop a greater expectation that their privacy should be better protected by law, given the potential for covert devices to become more and more intrusive and invasive.

Finding the appropriate legal balance between the rights of citizens to enjoy their solitude away from the prying eyes of others, and the legitimate interests that the state, its media, its corporations and private citizens might have in shining a light on their shady – if not outrageous – behaviours is a difficult one.

I have always been a champion of the right to privacy, but, having seen the images that have emerged in the last 48 hours, I may now rethink my position.