The legal requirements to be aware of when security cameras are installed during open homes

Homeowners may decide to install security cameras in their homes for a variety of reasons. The most common reason to install cameras in homes is for security purposes. During open homes in particular, homeowners may seek to monitor the persons entering their property and capture footage of those persons who may cause damage or steal personal items from their home. 

Security cameras are able to be utilised to monitor open homes subject to certain legal restrictions. It is important that homeowners are aware of the laws relating to recording devices in open homes because inadvertent contravention may result in the commission of an offence pursuant to the Criminal Code Act 1899 (Qld) (Criminal Code) and/or the Invasion of Privacy Act 1971 (Qld) (IOP Act).

Video recordings

Persons may not video record persons without their prior consent in places where there is an expectation of privacy pursuant to section 227A of the Criminal Code.  The maximum penalty for committing an offence pursuant to section 227A is imprisonment for three years. 

This restriction will generally extend to the use of hidden cameras in bathrooms and may extend in some circumstances to the use of hidden cameras in bedrooms as well. Accordingly, homeowners should refrain from installing security cameras in bathrooms and bedrooms without first obtaining prior consent from potential buyers. 

Audio recordings

Some security cameras are capable of capturing audio recordings in addition to visual recordings.  It is important that homeowners are aware that there are restrictions that apply in relation to what they can audio record. In that regard, it is an offence to capture or share audio recordings of private conversations pursuant to sections 43 and 44 of the IOP Act. 

These restrictions apply to conversations that are intended only to be heard or listened to by the persons involved in the conversation. They are the types of conversations that are likely to be held between potential buyers during open homes. For example, exchanges between potential buyers about whether or not to make an offer to purchase a property are likely intended to remain private. They will constitute “private conversations” unless the circumstances are such that the buyers ought reasonably expect that their conversation will be overheard or recorded.

Recording private conversations

Pursuant to section 43 of the IOP Act, it is an offence to use a listening device to overhear, record monitor or listen to private conversations such as those described above. The maximum penalty for committing an offence pursuant to section 43 is 40 penalty units ($6,192) or imprisonment for two years. 

A person who captures audio of a private conversation (even inadvertently) will have likely committed an offence unless they were a party to the conversation or if the circumstances are otherwise such that the conversation was reasonably likely to be overheard or recorded. In circumstances where a homeowner installs security cameras in their home and does not clearly inform potential buyers that they are being recorded, it is likely that any audio recording of the private conversations of potential buyers will be unlawful. 

So, in what circumstances ought the persons engaged in conversations reasonably expect that their words may be overheard or recorded?

In R v Reginald James Kay [2016] QDC (unpublished), Horneman-White SC DCJ found that a conversation held between persons at a property on which greyhound dogs were trained was not private because the participants ought reasonably have expected that their words may be overheard or listened to by other persons. The circumstances were such that there were other persons present when the material conversation was taking place and the conversation was conducted at quite an audible volume.

However, the above decision was not followed by Member Guthrie in Ball v Queensland All Codes Racing Industry Board [2016] QCAT 369 in similar circumstances. In that case, although the conversations were not in whispered tones, it was accepted that the persons within earshot at the greyhound training premises had knowledge of the contents of the conversation being had (greyhound training methods).  It was found that those engaged in the conversation impliedly consented to anyone in the premises overhearing the conversation, but not some other person. 

In circumstances where potential buyers are having discussions whilst viewing an open home, those conversations ought reasonably be expected to be overheard if they are had at volume and in close proximity to other persons. However, if those conversations are being had in close proximity to other buyers only, it may remain the case that there was no reasonable expectation that they would be overheard or recorded by the real estate agent or homeowner. 

In any case, in circumstances whereby homeowners cannot control what conversations are recorded, it is advisable to disable the audio functions of any security cameras for the duration of open homes, unless homeowners can obtain buyers’ express or implied consent to record their conversations.

Express or implied consent

It may be lawful for homeowners to utilise security cameras with audio capabilities to monitor open homes in circumstances where they have obtained buyers’ express or implied consent to do so. The circumstances must be such that potential buyers ought reasonably expect that their conversations will be recorded. 

It is therefore recommended that, if homeowners have security cameras installed in their homes with audio capabilities, they notify potential buyers that they are being recording upon entry into their home.  This can be achieved by ensuring there is a written notice at the entrance to the property to the effect that persons will be recorded upon entry into the property, instructing real estate agents to verbally inform potential buyers that they are being recorded upon entry into the property, or requiring potential buyers to sign a consent form to the effect that they consent to being recorded upon entry into the property.

If a potential buyer proceeds to enter into an open home once they have been informed that they are being recorded, it may be lawful to monitor them throughout the property even if those audio functions are enabled.

Sharing audio recordings of private conversations

If a homebuyer contravenes section 43 of the IOP Act, it will be unlawful for them to share the content of any conversations which they have overheard as a result of the contravention without consent pursuant to section 44 of the IOP Act. The maximum penalty for committing an offence pursuant to section 44 is 40 penalty units ($6,192) or imprisonment for two years.

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