'I spy with my little i(phone): phone recoridngs, emails and ... - Foley's

I SPY WITH MY LITTLE iPhone: PHONE RECORDINGS, EMAILS

AND SOCIAL MEDIA

Author: Date:

Belle Lane and Alison Burt 7 April, 2016

? Copyright 2016 This work is copyright. Apart from any permitted use under the Copyright Act 1968, no part may be reproduced or copied in any form without the permission of the Author.

Requests and inquiries concerning reproduction and rights should be addressed to the author c/- annabolger@.au or T 613-9225 6387.

"I spy with my little i(Phone): phone recordings, emails and social media"

Belle Lane and Alison Burt Foley's list

Victorian Bar April 2016

A. The conundrum More and more people are recording their lives on social media and they or their friends are putting that information in the public domain. Our private and unguarded activities are far more public than they have ever been. Such information is easy pickings for potential employers, stalkers, former partners and family lawyers. At the same time, most of us have smart phones which we carry everywhere. They are in effect personal computers that carry details of our daily lives, both public and private. They are also very handy recording devices: both audio and video. So how can we as family lawyers advise our clients about their access to and use of this information? How do we walk an ethical line? If a client presents us with information that s/he has gathered, how do we determine if and how we can use it?

B. Ethical obligations Where do we start? As always with our ethical obligations. In New South Wales and Victoria, our professional obligations are governed by the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 under the Legal Profession Uniform Law which commenced operation on 1 July 2015. In Western Australia, the Legal Profession Conduct Rules. They all have similar obligations and confirm our primary duty, as they reflect the common law.

1. Primary duty to the Court As barristers and solicitors, our paramount duty is to the Court and the administration of justice:

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Rule 3.1

A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.1

In Western Australia the duty to the Court over and above the duty to a client is even more express:

Rule 5 A practitioner's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty, including but not limited to a duty owed to a client of the practitioner.

The difficulty for practitioners is that so much of our legal practice is built on building good relationships with clients. In family law, we are dealing with the most intimate parts of our client's lives, and often building warm, friendly relationships with them. Sometimes our desire to see justice done, to not disappoint a client or disrupt a relationship has us questioning these boundaries. Sometimes the boundaries themselves are not clear. In such cases, go back to first principles: read your professional ethical obligations. Discuss the situation with a colleague or mentor.

One only needs to read some of the decisions of the legal practice boards to see the consequences of breaches. See Lambert v Jackson [2011] FamCA 257 & [2011] FamCA 275 (costs judgment), Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115.

2. Recordings: telephone and video

It is important to distinguish between telephone / video recordings that are covered by Commonwealth Legislation, the Telecommunications (Interception & Access) Act 1979 and those covered by State Legislation. In Victoria this is covered by the Surveillance Devices Act 1999 (Vic) ("SDA (Vic)") and in Western Australia, the Surveillance Devices Act (WA)("SDA (WA)").

The Commonwealth legislation deals with "interception of telecommunications". That is the recording must occur during its passage over the telecommunication system.

Section 6(1) Telecommunications (Interception & Access) Act 1979 (Cth) ("TIA Act"):

"For the purpose of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to, or recording, by any means, such a communication in its passage over the telecommunication system without the knowledge of the person making the communication."

1 Rule 3.1 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (Vic & NSW), Legal Profession Conduct Rules 2010 (WA) and WA Barristers' Rules 2012.

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3. Interaction between Commonwealth and State laws

Cth legislation covers the cases where there are listening devices installed in telephones or phone / wire taps. It does not cover the recording or listening when the message or communication has left the telecommunication system, such as a message on an answering machine or where a recording device is held externally to the phone. The listening into a phone conversation on an additional handset has been held to fall under the Commonwealth legislation.2

When considering the interaction between the Cth and State legislation, His Honour Judicial Registrar Haligan in Byrne & Byrne (2003) FamCA 887 held:

"29. On the authority of Miller [1978] HCA 44 and Edelsten v Investigating Committee of NSW (1986) 80 ALR 85, the Interception Act covers the field in relation to the interception of a communication passing over a telecommunications system, and a State law cannot operate to render lawful that which is unlawful under the Commonwealth Act, or to render unlawful that which is lawful under the Commonwealth Act."

The question whether a recording is lawful or unlawful therefore falls to be determined first by reference to the Commonwealth Act. Only if it was made in circumstances not covered by the Commonwealth Act can the State law then be considered. This is important to remember when considering the question of admissibility of recordings in Western Australia.

4. Interception of telecommunications

The first question to ask is how was the call recorded? Under section 7(1) of the TIA Act, a person is prohibited from intercepting, authorizing, suffering, permitting or enabling another person to intercept a communication passing over a telephone system.3 The interception provisions relate to communications that are "passing over a telecommunications system", that is, "live" or "real-time" communications such as telephone call conversations and other communications in transit over the Internet including while passing through ISPs' equipment such as routers, etc.

In this context communication is defined as including a conversation and message, or any part thereof, whether in the form of speech, music, other sounds, data, text, visual images (animated or not), signals or any other form or combination.4 So the TIA covers the interception of text messages sent by SMS, recording phone calls with software / apps and recording / listening into Skype conversations: see Kawada.

2 See Miller & Miller [1978] HCA 44

3 Section 7 Telecommunications (Interception & Access) Act 1979. 4 Section 11(a) Telecommunications (Interception & Access) Act 1979

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A telecommunication system is defined as a telecommunications network that is within or partly within (but only to the extent that it is within) Australia and includes equipment, line or other facility connected to the network and is within Australia.5 So we require a geographical connection with Australia, but the entire call does not have to take place within Australia.

The important elements of an interception under section 6(1) TIA Act above are the interception of the communication when it is passing over a telecommunications system and the lack of knowledge of the party being recorded.

Pursuant to section 105 of the TIA Act breaching the above provisions is an indictable offence and is punishable by imprisonment, generally 2 years maximum.6 There are also civil remedies available to a person who is aggrieved as a consequence of a breach of section 7 or 63.7

When one thinks of a listening device, we think of a physical device inserted into a phone. However, there is a wide variety of software that can record conversations on mobile phones and third party applications for recording Skype calls. As our clients become increasingly tech savy, we should expect to see more of such recordings or information prepared from them.

Some examples are: the case of Kawada & Kawada and Ors [2011] FamCA 659 dealt which with Skype recordings. The case of Russell and Russell [2012] FamCA 99 which dealt with the surreptitious recording of mobile phone conversations through software installation. Chapman and Timms [2014] FamCA 316 dealt with recorded telephone conversations, although the mechanics of the recording were not explained to the Court. R v Catena [2012] WASC 144 which dealt with the admissibility of phone recordings on a work phone system.

Once your client informs you that he or she has made a recording, a red flag should be going up. You will need to take very clear instructions about how the recording came into existence, determine what the criminal and civil consequences of breach may be and then consider whether or not you can or should use the recording?

5. What can you do with a recording?

Assuming that the recording of these calls (video or audio) is caught by the TIA Act, it is illegal. In such circumstances what use can be made of the recording inside and outside Court?

5 Section 11(b) Telecommunications (Interception & Access) Act 1979 6 Sections 105 Telecommunications (Interception & Access) Act 1979 7 Section 76A Telecommunications (Interception & Access) Act 1979

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