06.04.2021  The split ends of split execution

Take care before hitting ‘record’ during a virtual meeting

As the world has adjusted to working from home, we have seen a global rise in video conferencing for business. Temporary amendments to the Corporations Act 2001 (Cth) permit all company meetings to be held virtually, provided the technology used gives participants a reasonable opportunity to participate. These measures are due to be extended until 16 September 2021 under the Treasury Laws Amendment (2021 Measures No. 1) Bill 2021.

Whilst there are many advantages associated with virtual meetings, there are also risks. It may seem fairly harmless to record a virtual meeting, particularly for participants wanting to maintain a record without scribbling file notes, but participants need to consider the potential legal consequences of doing so.

Governance documents

A Company’s Constitution or other governance documents may expressly or implicitly prevent the recording of company meetings. Company Constitutions will usually provide that the board or chair may run company meetings in any way they see fit. If this is the case, then the board or chair could legitimately reject a request to record a meeting.

Surveillance Devices Act 2007 (NSW) (“SDA”)

In New South Wales it is an offence to record a private conversation through a listening device without the express or implied consent of all participants involved in the conversation (refer to section 7(1) of the SDA).

Is a virtual meeting a private conversation?

Likely yes. But it will depend on the nature of the virtual meeting. For example, a virtual meeting open to the general public would not generally be considered a private conversation.  The guiding principle appears to be that if participants in a conversation, or at least some of them, did not intend for the content of their discussions to be made public, then the conversation will most likely be a private one (refer to Corporation v Glen Carron [2018] SASC 116).

On this basis it is reasonable to assume that most company meetings would be considered private conversations for the purposes of the SDA.

Consequently, recording a virtual company meeting without the consent of all participants would likely be in breach the SDA. For an individual, this carries a maximum penalty of $11,000 or 5 years imprisonment, or both. And for a corporation, the maximum financial penalty increases to $55,000.

There are certain exceptions which are of limited relevance in the corporate sphere, primarily relating to recordings made by individuals out of fear for their safety, a topic outside of the scope of this post.

Video conferencing platforms and consent

Video conferencing platforms such as Zoom and Microsoft Teams offer recording functionalities where the meeting host, or with authority, meeting participants, can select an option to record the video conference. Both platforms notify all meeting participants when recording commences.

Therefore, if you are a participant in a meeting and receive notification that recording has commenced, a failure to object could be taken as implied consent and possibly absolve the recorder of liability under the SDA. So, speak up early if you have any objection.

Laws in other States and Territories differ

Whilst this article has examined the legal position in New South Wales, the laws in Queensland, Northern Territory and Victoria differ. In those three jurisdictions, a person may record a private conversation without the consent of the other participants provided they are a direct participant to the conversation.

While there may be scope to record a virtual meeting in these States and Territories, we remain of the belief that you should always take steps to inform all persons involved prior to recording a virtual meeting.

WB

This post is current at the date of publication. It is general in nature, does not constitute legal advice and should not be relied upon as legal advice. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this post.