In New Zealand, the legality of recording a phone call without the other person's knowledge depends on who is doing the recording and how the recording is subsequently used or disclosed. The primary legislation governing this area includes the Crimes Act 1961 and the Privacy Act 2020.
The Crimes Act 1961 and Interception of Private Communications
The Crimes Act 1961 addresses the unlawful interception of private communications. A private communication is defined as any communication that the originator and recipient intend to be heard or seen only by themselves [Source: Crimes Act 1961, s 216A(1)]. An interception device is any device capable of intercepting a private communication [Source: Crimes Act 1961, s 216A(1)].
It is an offence to intentionally intercept a private communication by means of an interception device [Source: Crimes Act 1961, s 216B(1)]. However, there is a significant exception to this rule:
- Party to the communication: It is not an offence under the Crimes Act 1961 if the person using the interception device is a party to the private communication [Source: Crimes Act 1961, s 216B(2)(a)]. This means that a person participating in a phone call can record that call without the consent or knowledge of the other parties, and this action itself does not constitute an unlawful interception under this specific Act.
Conversely, it remains an offence to intentionally disclose the substance or meaning of a private communication if it was unlawfully intercepted and the person making the disclosure knows it was unlawfully intercepted [Source: Crimes Act 1961, s 216C(1)].
The Privacy Act 2020 and Personal Information
Even if recording a phone call is lawful under the Crimes Act 1961 because the recorder is a party to the communication, the Privacy Act 2020 may still impose obligations, especially regarding the collection, use, and disclosure of personal information contained within the recording. Personal information is information about an identifiable individual [Source: Privacy Act 2020, s 7].
Under the Privacy Act 2020, an agency – which includes any person or body, whether in the public or private sector [Source: Privacy Act 2020, s 6] – has specific responsibilities:
- Principle 1 (Collection of personal information): Personal information must not be collected unless the information is collected for a lawful purpose connected with a function or activity of the agency, and the collection is necessary for that purpose [Source: Privacy Act 2020, Schedule 1, Principle 1].
- Principle 3 (Collection of personal information — sources): When an agency collects personal information directly from the individual concerned, the individual generally must be made aware of certain matters, such as the purpose for which the information is being collected and the fact that the collection is voluntary [Source: Privacy Act 2020, Schedule 1, Principle 3]. This principle can be relevant if a recording is considered the collection of personal information by an agency.
- Principle 10 (Limits on use of personal information): An agency holding personal information collected for one purpose must not use it for another purpose unless one of the exceptions applies (e.g., the individual authorises the use, or the use is directly related to the original purpose) [Source: Privacy Act 2020, Schedule 1, Principle 10].
- Principle 11 (Limits on disclosure of personal information): An agency must not disclose personal information to another person or body unless certain conditions are met (e.g., the individual authorises the disclosure, or the disclosure is one of the purposes in connection with which the information was obtained) [Source: Privacy Act 2020, Schedule 1, Principle 11].
Therefore, while an individual recording a conversation they are part of may not breach the Crimes Act, an agency (such as a business, organisation, or government department) recording a call without notification and then using or disclosing the personal information from that call may face obligations under the Privacy Act 2020.
Other Considerations
Even if the act of recording itself is lawful under the Crimes Act, the purpose for which the recording is made or its subsequent use could lead to other legal issues. For example, using a recording to harass, blackmail, or defame someone could constitute separate offences or civil wrongs, regardless of how it was obtained.
In employment contexts, an employer's policy on recording conversations may be relevant, and such policies often require consent for recordings in the workplace. While these are not legislative prohibitions on recording itself, breaching an employment policy can have internal consequences.
When to Seek Independent Legal Advice
Determining the specific legal implications of recording a phone call, especially regarding its potential use or disclosure, can be complex. Individuals or agencies seeking to understand their rights and obligations in specific situations are encouraged to seek independent legal advice. For free legal assistance, individuals can contact Community Law Centres throughout New Zealand [https://communitylaw.org.nz/].
Key Resources
- Crimes Act 1961: https://www.legislation.govt.nz/act/public/1961/0043/latest/whole.html
- Privacy Act 2020: https://www.legislation.govt.nz/act/public/2020/0031/latest/whole.html
- Office of the Privacy Commissioner: https://www.privacy.org.nz/
- Community Law Centres: https://communitylaw.org.nz/