However, the definition is somewhat limited as it does not capture activities and conversations which that party could reasonably expect would be seen or overheard by others. The definitions of ‘private activity’ and ‘private conversation’ found in s 3 of the Act are broad, encompassing any activity or conversation occurring in circumstances that indicate any of the parties to the activity or conversation desires it to be seen or heard only by themselves. Like Victoria, in Western Australia the optical or audio recording of a private activity or conversation is prohibited under ss 5(1) and 6(1) of the Surveillance Devices Act 1998 (WA). The prohibition on communication or publication of private information obtained from a recording extends to both visual and audio recordings under s 11 of the Act. It should also be noted that the definition of ‘building’ in s 3 of the Act is very wide, and includes ‘any structure’. However, it is worth keeping in mind, particularly when filming in an indoor public space. Under s 3 of the Act, this does not include an activity occurring outside of a building or an activity the participants could reasonably expect might be seen by someone else. In Victoria, the prohibition on using purely visual recording devices is somewhat broader, as s 7 of the Surveillance Devices Act 1999 (Vic) prohibits the optical recording of a ‘private activity’ to which the device user is not a party in addition to audio recording. This includes simply telling another person about the conversation without consent from the parties to the conversation, even if the conversation was directly recorded by someone else. Section 11(1) of the Act also prohibits the publication of any recorded private conversations or their content. This means that most video cameras (including integrated smartphone video cameras) are likely to be classified as ‘listening devices’ under the Act. Under s 4(3) of the Act, any device that can record or transmit visual images may be classified as a ‘listening device’ if it can also record or listen to sound. However, s 7(1) of the Act prohibits installing, using or even maintaining a ‘listening device’ that hears or records private conversations, whether or not the user is a party to those conversations. Under s 8 of the Surveillance Devices Act 2007 (NSW), the use of visual recording devices such as video cameras is only prohibited where trespass on private premises is involved. Though the legislation is slightly different in each state and territory, the best practice for film makers who record or capture peoples’ conversations on film and/or to use such footage in their film is to get the explicit consent of anyone whose conversation they record. Such legislation also generally restricts publishing or ‘showing’ unauthorised recordings that were obtained by using such a listening device. In all states and territories, there is a specific prohibition on the use of a listening device (such as a mobile phone or hidden film camera) to record a private conversation without the consent of the participants to that conversation. There is legislation in each state and territory concerning surveillance and listening devices (which would including mobile recording devices such as mobile phones), intended to protect peoples’ private activities and conversations. Those issues arise because people can easily be recorded on such devices without their knowledge. However there are some important legal matters that are particularly relevant to the making of films on a smartphone or surveillance device. Generally, the same legal issues need to be considered whether your film is made on a phone, or any more traditional equipment. Making short films or videos using mobile phone technology is increasingly common.
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