Whether making an audio or visual recording of someone without telling them will breach the Privacy Act will depend on the circumstances in each case. In particular, it will depend on who is making the recording and why they are making it. However, if you collect, use or disclose personal information in a way which would be highly offensive to a reasonable person, this exception will not apply. The act of recording a conversation does not escape these new faculties.
Whether as a simple record, or as an eventual means of proof, the truth is that even today it is unclear as to whether it is lawful to record a conversation or whether it could lead to negative consequences. Before addressing the primary issue regarding the legality of recordings, it is important to understand that there are different types of recordings.
An own recording is classified as one that is made when the person is inside the conversation, while recordings of others are classified as those that have been recorded by third parties that do not belong to the conversation. The validity of this type of recording of conversation lies in the fact that the person who publicizes the conversation is also the person who issued it, and the person that is recorded has voluntarily agreed to have that contact, understanding that they are responsible for the expressions and content within the conservation.
On the contrary, the recordings of others will always be illegal because they violate the Fundamental Right to the Secrecy of Communications, established in Article Since, the unauthorized third party has interfered with the message and has been made aware of the content of the conversation that other people are discussing. Intimately related to the question in regards to the validity of recordings, another question arises.
Thus, no surreptitious recording is allowed with exceptions for law enforcement officials who have obtained warrants to make such recordings. Anyone who violates federal or state recording laws may face jail time, a fine, or even an order to pay damages in a civil lawsuit.
A person who violates a state law prohibiting secret recording of conversations will face the penalty prescribed by that law. Virtually every state imposes some criminal penalty for violations of its secret recording law. In most states where taping someone who hasn't consented to the recording is illegal, the recorded person can sue the individual doing the recording. Damages are available to a person who wins such a civil lawsuit.
Secret recordings carry real risks, and the repercussions vary from state to state. Consult a criminal defense lawyer in your state to find out what the law is and what the possible penalties are for violations before you consider secretly recording any conversations. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
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