A correspondent with the NSW RFS writes:
You wrote in 2013 a piece about taking photos at RFS incidents and what could or could not be done with them afterwards – thanks that was helpful.
A question has now arisen in my district regarding the use of “helmet mounted” GoPro cameras and the like. They produce great quality pictures, and also record sound.
The RFS has a code of conduct document http://www.rfs.nsw.gov.au/__data/assets/pdf_file/0016/8710/1.1.7-Code-of-Conduct-and-Ethics.pdf that in “Section 10 Public Comment” states:
10.5. Audio, image and video postings referencing or containing RFS equipment or infrastructure, the RFS logo or RFS staff or volunteers engaged in RFS activities must not be posted to any public website or internet service without the written approval of RFS Media Services. Approval can be requested by emailing firstname.lastname@example.org.
But this does not seem to preclude the filming & thus audio recording of such material.
I note a recent article in the Melbourne Herald Sun http://www.heraldsun.com.au/news/victoria/victorian-firefighters-told-to-focus-on-fires-not-the-footage/story-fni0fit3-1227179890403 that has the CFA stating “CFA has guidelines for still or video images taken by its members on any kind of camera — these adhere strictly to the Privacy Act. The focus of anyone deployed to a major incident is first and foremost on suppressing the fire.”
So issues that come to mind include:
- Is there a Privacy concern? May a voice be recorded without the consent of all the persons being recorded (I don’t know if SURVEILLANCE DEVICES ACT 2007 – SECT 7 – Listening Devices applies; or even if it does what its effect is),
- Potential Litigation resulting from someone recording what a Commander or Incident Controller says when they are unknowingly (or even knowingly) recorded by such a camera and their decision gets challenged at a later stage,
- Having commanders not make, or unreasonably delay, decisions because they get worried that their instructions are being recorded,
- Safety of having a camera on the helmet http://www.abc.net.au/news/2014-10-14/schumacher-brain-injury-linked-to-gopro-camera/5813874
- There are probably other issues that you could raise in your answer.
I am sure these matters would be of interest.
I’ll restrict my answer to the legal questions.
It’s true I’ve written a few posts on taking photos.
- Taking photos on the fireground in South Australia (January 9, 2015);
- Lifesavers as law enforcers? (July 6, 2014);
- Taking photos whilst on duty with the NSW RFS – amended (October 26, 2013)
- US legislation on taking photos at emergency scenes (August 24, 2012); and
- The use of photos taken at accident and emergency scenes (August 6, 2011).
The gist of these posts is that one can take a photo of whatever you can see. There is, in Australia, no right to privacy. There are however issues distributing the photos that have been taken given service standards that members have agreed to when they join and if they have obtained access to areas by virtue of their role in the emergency services. The emergency services such as the RFS and NSW SES claim to own the IP in any photo taken by a volunteer whilst on duty. That conclusion depends on the meaning of the Copyright Act 1968 (Cth) s 176 and whether the photo is taken under the ‘direction or control’ of the Crown (see the discussion in the post ‘Taking photos on the fireground in South Australia’ (January 9, 2015)).
But what of audio recordings?
Let’s start with the Surveillance Devices Act 2007 (NSW). A ‘listening device’ is defined in s 4 as:
… any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid …
The first thing to note is that the listening device does not have to be secret or hidden. Any device that is capable of recording a conversation is a ‘listening device’. Accordingly a smart phone or the GoPro camera is a ‘listening device’ when it is being used to record audio.
Section 7(1) says:
A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
To do so is a criminal offence that carries a maximum penalty of $5500 or 5 years imprisonment or both. There are some issues there in particular that one must not knowingly use the listening device in that way. One can be shooting video for all sorts of reasons and it may pick up conversation from other people nearby. Recording the conversation is not the person’s intention and presumably they did not knowingly use the device to record the conversation. Further the unintentional recording of a conversation is not an offence (s 7(2)(c)).
Secondly the prohibition relates to recording a ‘private conversation’ that is a conversation that takes place
… in circumstances that may reasonably be taken to indicate that [the participants desired that the conversation would be heard] … only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent [of the participants] …
but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.
So if people have gone off to a private place and made some attempt at seclusion, using a high fidelity directional microphone to record their conversation would be an offence. On the other hand, to return to my earlier example, filming a street scene from a coffee shop even though you know the very loud person at the next table is speaking and their conversation will necessarily be recorded would not be.
Finally there is no offence committed if all the ‘principal parties’ to the conversation consent or if only one principal party consents and the recording is being made (s 7(3)(b)):
(i) … for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
Let us now try to apply those rules to the scenario. I’ll return to the specific questions.
- Is there a Privacy concern? May a voice be recorded without the consent of all the persons being recorded…
A person has mounted a GoPro camera to their helmet or otherwise to their uniform. The first question is why have they done that? If they intend to record data, including conversations, in order to ‘protect their lawful interests’, that is they want a recording so if anyone alleges misconduct later they will have an complete record of what they saw, said and did, then that would be lawful. If their intention is to capture great photos, a real time personal diary then any accidental or unintentional recording of a private conversation would also be lawful.
Recording a conversation where everyone knows they are being recorded is lawful.
There is no offence if the person records a conversation that they are a party to, even without the consent of the others, provided they do not intend to report the contents to anyone else (s 7(3)(b)(ii)). If they intend to put it on your social media site then they are committing an offence.
Recording a briefing or public meeting is lawful as that is not recording a private conversation.
If you are sitting down during the meal break and you see a couple of others huddled over in conversation and you quietly aim the camera at them to record what they are saying just for your own entertainment, that would be an offence.
- Potential Litigation resulting from someone recording what a Commander or Incident Controller says…
The issue there is not litigation per se but the use of the video as evidence. If there is subsequent litigation and the recording is relevant then prima facie it is admissible as evidence (Evidence Act 1995 (NSW) ss 55 and 56). If it turns out that the recording was illegal, to go back to my example of a high quality directional microphone being used to record people who have clearly tried to ensure that their conversation is private, then the recording may still be used if ‘the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been [improperly or illegally] obtained’ (s 138). That last section means a judge would have to consider both the illegality of the recording and the issue to be proved. For example if the recording was illegal but proved the people involved were planning a serious terrorism offence, then the evidence would probably be admitted. If it was illegally obtained and the person who recorded it wanted to use the recording to prove that their neighbour had caused the noise that they had earlier complained about, it would not be admitted.
- Having commanders not make, or unreasonably delay, decisions because they get worried that their instructions are being recorded…
That’s not really a legal issue but it would reflect poorly on commanders because they should expect, in fact they should have arrangements in place, to ensure their instructions are recorded. The members of the IMT are the ones who could justify wearing recording devices to record the events around them, the conversations that occur and hopefully their own thoughts and reasoning to explain why they came to a particular decision. In the best of all possible worlds, everything in the IMT is being recorded anyway, so the presence of another camera shouldn’t make a difference.
- Safety of having a camera on the helmet …
I can’t comment on whether or not the cameras affect the integrity of the helmet, but I suspect they would, particularly depending on how they are mounted. Certainly if it is becoming common practice for them to be mounted on a helmet one would expect the RFS to do a risk assessment (which may mean no more than reading the manufacturer’s instructions) and if necessary giving a direction that they cannot be mounted to RFS issued helmets.
Remember that a volunteer has to take reasonable care for his or her own safety as well as comply with reasonable safety instructions. If the directive is that they are not to be mounted on helmets for safety reasons, volunteers would have to comply with those directions (Work Health and Safety Act 2011 (NSW) s 28).