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Consider the following scenarios:

Alice visits Bob's home and he has surveillance devices in operation for security which record all of their interactions.

Alice visits Bob's home after they go on a date and as a matter of general practice Bob surreptitiously starts a recorder as insurance in case she later attempts to accuse him of rape.

Alice visits Bob's home and they anticipate the interaction to be fraught. Bob doesn't know whether she might try to coerce or blackmail him, so he starts a recorder without her knowledge.

In each of these cases, has Bob done anything wrong?

Does it make a difference if he only refers to the recordings himself and does not publish or disclose them?

Does it make a difference if he only relies on them to prove Alice's lies or wrongdoing, thus retrospectively vindicating that Bob indeed had a reasonable excuse to be motivated to record her after all?

Does it make a difference that it is Bob's home?

How does the situation differ from a shop running CCTV on their own premises?

What if it was a phone conversation rather than in person at Bob's home?

1 Answer 1

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In England and Wales, in general it is legal to make a recording in one's own home without the knowledge or consent of the other participants.

In general the law with regard to recordings is more strict in non-domestic contexts than it is in domestic contexts. For example, a business must "make all reasonable efforts" to inform a caller that their telephone call may be recorded. A business has obligations under data protection law that the householder does not have.

Depending on the circumstances the homeowner might commit a civil tort (breach of confidence) or criminal offence if he discloses or publishes the recording made without the consent of the other participants. E.g. submitting it as evidence to court is OK, sharing it with friends or publishing it on the internet is likely not OK.

In the specific context of the homeowner making a recording of a sexual act with another person and the other person has not consented to the making of the recording:

  • if the homeowner shares the recording they might be investigated/prosecuted for the criminal offence of voyeurism (s67(3) Sexual Offences Act 2003)

  • in R. v Richards the Court of Appeal ruled that the making of the recording for one's own sexual gratification amounts to the criminal offence of voyeurism (s67(3) Sexual Offences Act 2003)

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  • Yes and could you add a bit about "outside" one's own home? I've heard that if I install cameras covering my door, porch or front garden/yard, whatever they record can be used only if I also put up a prominent notice warning potential subjects… For clarity, is that different? Jun 15 at 22:23
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    @RobbieGoodwin I think the key point for outside cameras is that it does not suffice that the camera is attached to your private property, it may also film exclusively on your private property. Filming the public sidewalk outside your property is not ok.
    – quarague
    Jun 16 at 10:01
  • @RobbieGoodwin IIUC there is no requirement to display a sign if you only record what happens within the boundary of your private property. ICO guidance says of recording outside your property, "[you must] Let people know you are using CCTV by putting up signs saying that recording is taking place, and why" (unfortunately it does not cite the law). ico.org.uk/your-data-matters/…
    – Lag
    Jun 16 at 12:44
  • Thankyou both for confirming that. Jun 16 at 17:49
  • Regarding the recording of a sexual act: (1) The answer refers to consent, but the question refers to knowledge. Note that they are not the same thing. (2) Does it make a difference if it is only an audio recording? Aug 9 at 11:07

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