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Techies and iPhone aficionados have recently discovered that AirPods can be used as a spy-like listening device that allows you to eavesdrop on conversations while out of a room. But while “forgetting” your phone on the table and tuning-in to hear the gossip might sound like a bit of scandalous fun, it could lead to you being charged with a criminal offence.
Under the Surveillance Devices Act 2007 (NSW) a person can be charged where he or she knowingly uses a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party. It is also an offence to record a private conversation even if that person is a party. These offences carry maximum penalties of up to 5 years imprisonment and/or a fine of $11,000, which increases to $55,000 for corporations.
A “private conversation” for the purposes of the Act is any words spoken by one person to another person(s) in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only by themselves, or by themselves and by some other person who has their consent.
What is and isn’t considered a private conversation will depend on the facts of each case, though common sense examples might include a couple’s discussion about their sex life inside their own home or a behind-closed-doors company meeting where the agenda and minutes are not made publically available. Importantly, it doesn’t include a conversation made in circumstances in which the parties to it should reasonably expect that it might be overheard by someone else, arguably ruling out most discussions had in a public place such as a bar, park or restaurant.
When a device is used to record a private conversation an exception to liability is found if one of the participants consents to the device being used and the recording is reasonably necessary for the protection of his or her lawful interests. An example of this is where a complainant in a sexual assault matter records a conversation with an accused person to convince others that her complaint is genuine. Another example is where a person records threats of blackmail or extortion to present to police.
However, this exception does not apply when a person uses a device to overhear or listen to a private conversation or when the person is not a party to it, as when eavesdropping using AirPods. If evidence of a conversation is obtained in this way, even where the person was trying to protect his or her lawful interest, that person could be charged with an offence and the evidence ruled inadmissible in court. Considering this, and despite the allure of having inside knowledge, we’ll need to abide by the old saying that “sometimes it’s better not to know”.
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.
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