The matter of voice recording and video or film recording of others, possibly without their knowledge or consent, is
once again topical.
Technology gives us all the ability to record conversations and images. The office telephone system may have voice
recording and playback features and in many cases you will be told that your call is being recorded. Mobile phones
usually have the capability of recording conversations and be able to take pictures and video recordings. Emails, texts
and other electronic message systems are a regular feature of everyday life.
While we all know of this capability it really only becomes an issue when recordings, made with or without our knowledge
or consent, are used to disadvantage the other party.
Conversation recordings, some covert and some not, are often used in employment disputes. Evidence given by the
disputing parties in the Employment Relations Authority (ERA) does not fall subject to the Evidence Act 2006, and
therefore is generally admissible and will be heard. The ERA usually approach it simply from a fairness standpoint, and
it's the fairness particularly which generally gets called into question when recordings are covert.
In Lawtalk 904 (NZ Law Society, N McSparron, 2/3/17) said that “…Covert recordings of employees by employers will be difficult to justify in anything but exceptional
circumstances…”. and we believe that this comment is significant for any case where an employer is considering recording
conversations at work, covert or otherwise.
One party secretly recording another doesn’t necessarily breach the Privacy Act. The proviso is that the recording is
done by a person who is a party to the conversation. It is often considered to be much the same as writing detailed
notes. Similarly, taking of visual images may not breach the Act or amount to an offence under New Zealand law. It must
be noted that each case will be considered on its own facts. In matters of film/video recording the law may be breached
if the party being filmed has an expectation of privacy i.e. film recordings taken in dressing rooms, bathrooms,
bedrooms, etc. are more likely to be illegal.
If you want to record a conversation, it is good practice to advise the others involved and to get their consent. The
same applies for video recordings and our employment agreement builder includes a clause for workplace surveillance.
If you are concerned that a recording may be made without your knowledge you should raise this concern at the start of
the conversation. You should commence by stating that the conversation is confidential and by asking the others present
to acknowledge this. This may not prevent a recording being made but it may help demonstrate that the other party was
not acting in good faith.
If in doubt please contact us: 0800 15 8000.