In today’s digital world, pretty much everyone has a smart phone with filming capability.
Recordings can also be made available for public viewing on the internet within seconds.
But is it legal to film people with a smart phone?
The answer depends on where the filming takes place, the circumstances, and for what purpose.
Using your smart phone to film from a public space
If you see someone or something that interests you in a public space, it is generally legal to film it using your smart phone.
You do not need consent from that person, or any council. A public space is an area that is open and accessible to everyone, like a park, playing field, the footpath or a public beach.
It is important to note though that you can find yourself in legal trouble if you are filming in an offensive manner in a public space.
For example, taking pictures of people in their bathing suits at the beach.
The film must also only be used for a personal purpose.
If you intend to publish it on the internet for a commercial purpose, then even though it is legal to record, it is illegal to publish it unless permission is obtained from the subject and any landowner (including council).
Commercial uses include anything that is used to sell goods or services. It does not have to be related to profit or income, a commercial purpose can also include adding to or creating a business reputation.
You can also use your smart phone to film a police officer without their consent, as long as the filming is not hindering them from doing their job.
Such footage often captures behaviour by police that is worthy of criticism. See our previous blog post for more information on whether it is legal to film police officers in NSW.
Using your smart phone to film in a private space
If you are on private property, it is only legal to film using your smart phone if the owner permits. They can ask you to stop filming and evict you.
If you don’t comply, you can be liable for trespass.
Your actions could even amount to assault if the owner of the property feels in any way threatened or intimidated by your non-compliance.
Now, if you have been removed from their property and the incident taking place is still visible from a public space, such as a footpath, technically you can take out your smart phone and film it from that space regardless of their consent.
However, this behaviour can be seen as stalking or harassment, and you may still get a tap on the shoulder by police.
Remember filming means audio too
It’s important to be aware that filming also generally captures audio.
So if what you are filming on that private property (even if you are filming it from a public space) is a private conversation between two people, it is illegal to record the discussion without their consent (s11 Surveillance Devices Act 2007 (NSW).
This area of law is complex though, because you can capture a conversation on film to the extent that it can be heard in public.
If the people involved in the conversation don’t want it to be heard, they ought to talk quietly or discuss the matter behind closed doors.
If the behaviour of the people was to such an extent as to suggest they were having a private conversation, however, then prying into that and filming it is illegal.
Using your smart phone to film someone acting in a private manner
Using your smart phone to film someone acting in a private manner can be a criminal offence, punishable by a jail term, unless you have the subject’s permission.
This is regardless of whether the film is for personal or commercial use.
In NSW, it is a criminal offence to film a person’s private parts, or to film a person engaged in a private act such as undressing, showering or sex, without the person’s knowledge and consent.
Using your smartphone to film any form of indecent act involving a child can be considered child abuse material, or an aggravated act of indecency.
Such acts are entirely prohibited – consent is irrelevant.
It can also be against the law to publish any footage of someone engaged in a private act online, or send it someone else.
In summary, when you take out your smart phone to film, first consider if you are in a private or public space.
If private – generally that requires permission. If public, then think about the purpose of the recording.
Personal use doesn’t always require consent, but anything that is intended to be used commercially does.