8

If I am stopped by the police for questioning on the street, would I be within my rights to record the conversation on my phone to avoid any looseness with accounts of what was said on either side? Would the police officer be allowed to refuse my request to record the conversation? And what if my phone just happened to be on my body recording before any conversation was initiated?

(I am asking this from the perspective of an Australian in Victoria - but I'm sure the answer from other jurisdictions would be interesting also.)

  • In the UK you are free to record almost anything in public. If it was required to be private it would not be done there. – Terry Sep 30 '15 at 7:36
  • There may be a difference between openly recording and secretly recording. – gnasher729 Jul 21 '18 at 13:40
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In New South Wales it is entirely legal to film police (or anyone else). However, as discussed (What is considered "public" in the context of taking videos or audio recordings?) audio recording is more restricted: you must either have the permission of all the participants in a conversation or be a party to the conversation.

I do not imagine the law is any different in Victoria.

  • I'm curious, what is defined as a party to the conversation? Can you be a party without talking? Could you talk and not be a party? – Viktor Dec 25 '15 at 2:48
  • @Victor if someone speaks to someone else then I expect the second person is a party to the conversation regardless of whether he or she says anything. – phoog Jul 22 '18 at 2:41
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In the U.S. laws on audio recording vary substantially by jurisdiction. One good clearinghouse of legal guidelines on the question is the non-profit Reporters Committee for Freedom of the Press (RCFP).

In general (but perhaps not without exception), it is legal to record police while they are on duty, and more certainly when they are interacting with the public. (Even if, as they often do, they assert in the moment that it is not legal to record them.)

  • 2
    In case anyone wants a citation to a court case on the first amendment right to videotape police performing their duties in public: media.ca1.uscourts.gov/pdf.opinions/12-2326P-01A.pdf – Viktor Dec 25 '15 at 2:52
  • @Viktor that decision applies only in the first circuit. – phoog Jul 22 '18 at 2:47
  • @phoog I don’t believe there is a circuit split on this issue, but if you know otherwise please let me know. So that someone can reference that too – Viktor Jul 22 '18 at 2:49
  • @Viktor I don't know otherwise, but I note the lack of reference to supreme court decisions, so I suspect it. The fifth circuit would be where I'd start looking. – phoog Jul 22 '18 at 2:53
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To Viktor: regarding what is defined as a party to the conversation---anyone that is talking in the conversation. No you are not a party, if you are not talking. It is illegal to record conversations where no one has given permission for it to be recorded. At least 1 person who is a party to the conversation must agree for it to be recorded.

Regarding being stopped by the police and recording them which is what the question is about. While it is not necessary to do so, if you are an honest person why would you not tell the police that you want to record the conversation. Could they refuse? I doubt that any police officer would ever refuse to let you record the conversation. Your recording device just happens to be already recording? Really? Unless it is a dashcam, I cannot think how often a recording device would just happen to be recording.

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