Clarity Law

Queensland has instituted various laws to protect individuals' rights and privacy. Section 227A of the Criminal Code addresses the serious offence of making observations or recordings in breach of privacy. This provision aims to safeguard individuals from invasive and unwarranted surveillance, reinforcing the importance of privacy in the digital age.

Understanding Section 227A

Section 227A - Observations or Recordings in Breach of Privacy specifically targets the act of making observations or recordings without consent, infringing upon an individual's right to privacy. The provision encompasses a range of activities, including but not limited to, photographing, filming, or recording someone without their knowledge or consent in situations where they have a reasonable expectation of privacy.

What does the Law say?

Section 227A(1) sest out that:

A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy—

(a) without the other person’s consent; and

(b) when the other person—

(i) is in a private place; or

(ii) is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act;

commits a misdemeanour.

In addition a separate offence is set out in section 227A(2)

A person who observes or visually records another person’s genital or anal region, in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region—

(a) without the other person’s consent; and

(b) when the observation or visual recording is made for the purpose of observing or visually recording the other person’s genital or anal region;

commits a misdemeanour.

Elements of the Offence

For a charge under Section 227A to be established, several key elements must be satisfied:

1. Observations or Recordings:

   • The accused must have engaged in the act of making observations or recordings. This can involve visual surveillance, such as taking photographs, as well as audio recordings without the subject's consent.

   • “Observe” is defined as observe by any means.

   • “Visually record a person” means record by any means, moving or still images of the person or part of the subject.

2. Lack of Consent:

   • The observations or recordings must have occurred without the explicit consent of the individual being observed or recorded. Consent is a critical factor in determining the legality of such actions.

   • Consent” must be freely and voluntarily given by a person with the cognitive capacity to give the consent.

3. Reasonable Expectation of Privacy:

   • The person being observed or recorded must have had a reasonable expectation of privacy in the given circumstances. For instance, activities within private spaces like homes, backyards or washrooms typically carry a higher expectation of privacy than public spaces.

   • It comes down to the test of whether a “reasonable adult” could expect to be afforded privacy in all the circumstances.

   • Where the charge is not related to filming the genital or anal region but just that they filmed the other person then that other person must be in either a private place or engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act.

Examples

Example 1: Beach

Generally, a person at the beach does not expect a high degree of privacy. So a person who films the beach scene as a whole wouldn’t breach the law. However if someone were to specifically film a persons genital or anal region this could be considered a breach of section 227A(2) as this offence does not require the subject to be in a private place.

Example 2: Backyard

Generally, a person in their backyard expects a high degree of privacy. The degree of privacy might be influenced by how many neighbours they have and where the neighbours houses are located. There is however likely not many examples where a person could be filmed in their backyard and this not considered a breach of the law against observations or recordings in breach of privacy.

Example 3: Home

Generally a person in their house expects the very highest degree of privacy. Any filming of someone in their house would breach the law against observations or recordings in breach of privacy.

Which Court will hear the Charge?

The charge of observations or recordings in breach of privacy will be heard in the Magistrates court closet to where the offence occurred.

Penalties

A breach of Section 227A is considered a misdemeanour criminal offence in Queensland. It carries a maximum penalty of up to 3 years in prison.

The severity of the penalties may depend on factors such as

• the nature of the breach

• the extent of the invasion of privacy

• the intention of the accused in doing the filming

• any potential harm caused to the victim

• the age of the victim

• the length of time or the number of times the recording occurred

• the defendants criminal history

• how sophisticated the filming setup was

In most cases a prison sentence will be imposed however the defendant may not have to serve time in prison if the sentence is wholly suspended or if an immediate parole release date is set.

Legal Defences

Defendants charged under Section 227A may explore various legal defences, including but not limited to:

1. Lack of Intent:

   • Demonstrating that the observations or recordings were unintentional or accidental may serve as a defence. Proving a lack of malicious intent can be crucial in such cases.

2. Consent:

   • If the accused can establish that they had obtained valid consent from the individual being observed or recorded, it could serve as a defence against the charges.

3. Public Domain:

   • Arguing that the observations or recordings occurred in a public space where individuals generally have a diminished expectation of privacy may be a viable defence strategy. The law requires that the recordings where done in the situation that that person would expect to be afforded privacy.

   • If the charge was under section 227(1) then proving the filmed person was not a private place or engaging in a private act and the recording was not made for the purpose of observing a private act could be a defence.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the filing was excused by law or that there was a valid reason for the filming.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is most likely. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.

 Learn more about the difference between a conviction and non-conviction

The police want to talk to me about a observations or recordings in breach of privacy charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice.

Learn more about your right to silence.

I’m not guilty of observations or recordings in breach of privacy

Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.

Learn more about what to do if accused of a crime you didn’t commit.

• I didn’t do it! What to do if Accused of a Crime you didn’t Commit

• Visit our main criminal law website

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Conclusion

Section 227A of the Queensland Criminal Code - Observations or Recordings in Breach of Privacy serves as a crucial safeguard for privacy rights in the digital age. Understanding the elements of this offence and potential legal defences is essential for those navigating the complexities of criminal law in Queensland. As technology continues to advance, the legal system must adapt to ensure that individuals' right to privacy is upheld and protected.