Virtual Meetings – Does the temptation to record them outweigh the risks?

Out with the old and in with the new: social distancing rules have moved meetings from the boardroom to a virtual platform via Microsoft Teams, Zoom, Webex, Go to meeting or Skype, but what does this mean for recording etiquette and privacy?

With more people working from home to accommodate social distancing measures, the use of virtual platforms to host meetings has become a common occurrence. This practice has become a part of the “new normal” and has reshaped workplace interactions.

The changes to how people work and interact with work colleagues are likely to linger well past the end of the coronavirus pandemic. Most of the software used for online meetings comes with inbuilt recording features giving employees and employers new ways of recording conferences and meetings.

However, the mere ease of recording such meetings doesn’t automatically make these recordings permissible.

Read on to find out when it is permissible for you, as an employer to record meetings with your employees.

Is it legal to record a meeting?

From an employer’s perspective, the relevant legislation that contains their rights are the following:

• Workplace Surveillance Act 2005 (NSW) (“WSA”); and
• Surveillance Devices Act 2007 (NSW) (“SDA”).

Recording a video could be considered “camera surveillance” (WSA s 3), an activity that is permissible so long as the employee has received advanced and continuing notice that such a recording may take place (WSA s 11). In this case, an employer is permitted to record an employee via video (in the legislation this is called ‘optical’ recording) if the employee is at their workplace or if they are performing a work related task (WSA s 5).

Recording a video conference without providing adequate notice to an employee may be considered “covert surveillance”. Such surveillance is an offence punishable by fine of
$5,500.00 per Director who knowingly authorised or permitted the covert surveillance.

In addition to this, recording a video conference or making an audio recording of a meeting is also subject to the Surveillance Devices Act.

The recording of a private conversation is an offence under s12 SDA. This begs the question: what exactly is a private conversation? A private conversation is any discussion or meeting between two or more people where it is clear by the circumstances that the only people who should be privy to the conversation are those active participants of the conversation, and any other people who have received express consent to listen to the conversation.

Recording a private conversation without consent attracts a significant fine of $55,000.00.

Moreover, an employer who records then “publishes” a recording of a private conversation could face an additional fine of $55,000.00.

Are there any exceptions?

Whilst recording a meeting with the consent of the employees is permissible, recordings without consent can occur when:

1. Advanced notice as required by law has been given to the parties being recorded (for example, an employer could state to their employee that at any point in the future, recordings of conversations and meetings may occur),
2. The recording is reasonably necessary to protect a lawful interest; and
3. The recording is being made in response to threats of harm.

What does this mean for my company?

As a company, it is important to update your internal policies to ensure that they reflect and accommodate changed work environments and ways of meeting especially in light of modifications in the workplace made due to COVID19. If you are considering recording meetings by electronic or audio means, it is best to err on the side of caution and ensure that notice of the surveillance is given within the required timeframes. Your company policies should also be updated to allow for virtual meetings to be recorded and the recordings relied upon as needed.

If you are unsure whether your policies protect you and your business and allow you to record meetings with your employees, reach out to one of our trusted Solicitors at Streeterlaw who will be able to review and update your policies and procedures. Start the process now by calling Streeterlaw on 02 8197 0105.

Written by Jamal Bakalian

After studying a double degree in Law and International & Global Studies at Sydney University, Jamal completed her GDLP at the College of Law. She is currently undertaking her Masters of Law (majoring in Commercial Litigation). Jamal has been practicing Law for 5 years. With a passion for resolving disputes, Jamal is a valuable member of the Commercial Litigation team at Streeterlaw.

Call us on 02 8197 0105 to book an appointment with Jamal Bakalian!