The publication of embarrassing details of a private phone call between Today host Karl Stefanovic, his brother Peter Stefanovic and Peter’s wife, Today newsreader Sylvia Jeffreys, may raise red flags for many users of the ride-sharing service.
After initial reports he was shopping around an audiotape, which captured the couple in the back seat talking to Karl on speakerphone, the driver later strenuously denied the existence of any audio recording, instead selling the contents of his incredibly accurate memory to New Idea for $50,000.
That’s because, if such a recording did exist — and we are not suggesting it does — the driver could be in a lot of trouble.
“There’s potential civil liability for breach of privacy from individuals, and potential penalty for federal or state-based breaches [of privacy laws] with potential criminal sanctions,” said Will Barsby, national special counsel of consumer law at Shine Lawyers.
As the Office of the Australian Information Commissioner points out, the laws relating to monitoring and recording phone conversations differ between states and territories. While it is illegal in some states and territories to record a phone call or conversation without the person’s consent, in other states and territories it is not.
“In this situation, it’s covered by invasion of privacy or surveillance devices legislation in the applicable states. The Federal Telecommunications Act of 1979 covers recording [by one party],” said Mr Barsby.
“So if I’m on the phone with you now and press record without asking your permission, that’s illegal. In Stefanovic’s case, the Uber driver [has hypothetically] recorded it using his device, so it’s not covered by the Telecommunications Act because he wasn’t a party to that conversation.”
In NSW, the Surveillance Devices Act 2007 states that it is illegal to use a “listening device”, which can include an smartphone, “to overhear, record, monitor or listen to a private conversation to which the person is not a party”.
It also says that a person “must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device”.
Both offences carry a maximum penalty of five years’ imprisonment. “I don’t have a dash-cam … I don’t even know how to record something on my phone,” the Uber driver was quoted by New Idea as saying.
So it’s pretty clear that using your phone to secretly record passengers is a big no-no, more or less whichever state you’re in. But what about dashcams?
While many taxis are fitted with security cameras — along with prominent signs informing passengers they are being recorded — the legalities around Uber drivers recording inside private vehicles are a bit more confusing.
“Taxis have exemptions by way of law for safety,” said Mr Barsby, adding as more states legalised Uber, the same exemptions were being applied to ride-sharing drivers.
On its website, Uber says it allows its drivers to “install and use video cameras to record riders for purposes of safety”, but warns that “local regulations may require individuals using recording equipment in vehicles to fully disclose to riders that they are being recorded in or around a vehicle and obtain consent”.
Where it gets messy, however, is the legality of publishing that footage. Last year, Uber’s own chief executive was caught out by leaked dashcam footage of a heated argument with a driver who took him to task for cutting fares.
“There are no specific laws in Australia that are regulating that [publication],” said Mr Barsby. “That’s the emerging technology phase we’re going through with Uber. If you get people’s consent it’s fine, but potentially the publication of material without people’s consent, there’s a risk that it could be defamatory.”
He added that it would “without a doubt” be a breach of Uber’s code of conduct. “It’s just a timely reminder that in the digital age, any conversation you have can be recorded,” he said.
Uber did not respond to requests for comment.