Sisters In Law: Help, my neighbour is secretly filming me

An Australian woman was swimming in her backyard pool when she noticed something strange — a hidden camera pointed right at her.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to the minefield that is surveillance.

QUESTION: I was swimming in my backyard pool when I noticed a hidden camera on the side of my neighbour’s garage. It was hidden behind some branches but pointing right at me — is this even allowed? What are my rights when it comes to surveillance?

ANSWER: In an era where hidden camera technology is state of the art and anyone can purchase devices online, no one can be sure they aren’t being filmed, even behind closed doors.

Does a right to privacy even exist? When can you use hidden cameras to protect yourself?

In Australia there is no right to privacy outlined in the Constitution and to enforce our rights we need to rely on a variety of different laws; cases and legislation made by the Commonwealth and state governments, which all unfortunately vary, creating challenges when working out what your rights are.

Some states, such as Queensland, make it illegal to make a recording or take photos of someone without their consent, in circumstances where it would be reasonably expected they would be given privacy, and they are in a private place or engaging in a private act (such as in a toilet or shower, undressing or engaging in a sexual act).

In Queensland this is also the case if the offender is a party to the private activity and could face a maximum two years in jail.

This law applies in the Northern Territory, Western Australia and Victoria as long as the person filming is not engaged in the private activity i.e. is a peeping Tom, these states too have criminal penalties of between one and two years in jail.

Jail time doesn’t always eventuate in an offence. Perth man, David Rhoden who installed a hidden camera in the toilets of a suburban shopping centre got off with a suspended sentence.

In NSW, the law says using a hidden camera in this way is also illegal, but the filming must have been done for sexual arousal or gratification, and doing so could land you in jail for up to five years.

For those of you who are worried about the nude photos or home pornography you consented to, with your now ex (think Paris Hilton’s leaked sex tapes and “revenge porn”), if your ex does share these with anyone, in most states, there will be an additional criminal offence, and possible further jail time of two years.

It is illegal for hotels and other accommodation sites to hide cameras in rented spaces, however it does happen. Hidden cameras were found at a number of South Korean hotels with the footage being live streamed online through a subscription service.

Look at the fine print or in the terms and conditions of your lease because providers like Airbnb have a policy requiring all hosts to reveal security cameras and as long as this is done, it is generally OK to use them.

Covert recording has its benefits when used appropriately. The police, acting in their official capacity and where it is reasonable, will not have committed an offence in making hidden recordings.

Many shops and licensed premises have CCTV cameras which prove beneficial in exposing criminal activity or poor behaviour which are all legal, as long as they are not in places where you would expect to be afforded privacy.

Ariana Grande fell victim to social media backlash after a camera in a doughnut store caught her licking doughnuts that were for sale and saying “I hate America”.

The use of CCTV footage can be used as evidence related to a criminal activity, like the infamous footage of Winona Ryder shoplifting thousands of dollars worth of merchandise from Saks Fifth Avenue in Beverly Hills.

If you think you have been filmed or photographed without your consent you should go to the police.

If the footage has been shared online go directly to the site and ask that it be taken down, the Australian Cybercrime Online Reporting Network will also accept reports of cybercrime such as this and investigate.

Thinking of catching someone in the act yourself? Something to do with a family law matter with your ex-spouse, unfair dismissal proceedings against your employer, or you suspect your housekeeper is stealing — you should always seek legal advice first.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au.

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