Married at First Sight’s legal battle. And it’s not divorce.

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Even if you haven’t watched it, it’s been hard to miss the headlines, as the dramas unfold on Married at First Sight, the reality TV show that follows the trials and tribulations of strangers who attempt to have romantic relationships on air with a view to getting married.

The show, billed as a ‘social experiment’ has polarised Australian viewers in recent weeks, and now an interesting legal suit is now potentially brewing between two of the ‘married contestants’ over the taping of a private phone conversation.

The story so far

Mel and Dino, a couple on the show, were struggling to get along. One night, while Mel was having a personal phone conversation with her sister, Dino secretly recorded it. Dino believed that Mel was making negative, insulting comments about him, so he taped the conversation.

When he admitted to having the recording, a segment which was aired on Channel 9 recently, he said his intention was for he and his ‘wife’ Mel, to listen to the conversation together and use it as a basis for working through some of their relationship problems.

Mel, of course, felt that her privacy had been violated. And, after leaving the show, Mel says she was approached by a law firm, and is now considering taking legal action against Dino for recording her private conversation. 

Did Dino break the law?

In Australia, it very much depends on which State or Territory you’re in.

In New South Wales, you can only record a conversation if you have the permission of everyone involved, or a principal party to the conversation who wants the recording believing it is “reasonably necessary for the protection of lawful interests”.

The recording can’t be made for the purpose of sharing it in any way.

However, other states and territories, such as Queensland, it is permitted to record a conversation without consent.

Gable Tostee, the Queensland man who was acquitted of both murder and manslaughter after his Tinder date fell to her death from his apartment balcony, when he locked her out, admitted in court that he had recorded several of his Tinder Dates.

Under Queensland law, this is permissible. Because in Queensland, if you are involved in a face-to-face conversation you can secretly record it. A phone call can also be taped by someone having the conversation.

Similar laws apply in Victoria and the Northern Territory.

In New South Wales

In New South Wales, consent is required. The Surveillance Devices Act 2007 is the main piece of legislation which governs the recording of conversations.

If you fail to comply in NSW there are strict penalties – five years’ imprisonment, or $55,000 for a corporation or $11,000 for an individual. Similar laws apply in Western Australia, with a maximum penalty of 12 months’ imprisonment and/or $5000 fine or $50,000 for a body corporate.

Exceptions to the law

The only exceptions are if all parties involved consent to being recorded, or if the or if the recording is in the public interest, or for the protection of your own legal rights. So, in the case of Dino and Mel, when he recorded the conversation for the two of them to discuss later, technically, he broke the law, because he did not have Mel’s consent.

However, under other circumstances, such as if you are recording someone to obtain evidence of breaking the law, the recording, the motivation, and circumstances behind it may be taken into account and the court may view it differently.

A spokesperson for Endomol Shine, producers of Married at First Sight, say that Dino was chastised over the recording and it was promptly destroyed. The recording itself was not aired during the programme.

Know your rights and responsibilities

The lesson though is to take care, and know your rights and responsibilities. With so much technology at our fingertips we can easily record or video anyone, or anything, at any time.

And while it may be tempting in the heat of the moment, to secretly record another person – if for example you have a family law dispute, such as a divorce or custody battle with a spouse, or an unfair dismissal proceeding with your employer, it is best to seek legal advice before you hit the record button.

Even if your recording is legal under the law, courts might not look favourably upon your actions, and what you obtain may not actually be supportive evidence for your case.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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