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Arts Law Information Sheet Making films on a smartphone or using surveillance and listening devices raises important issues such as consent and privacy.This information sheet discusses what artists or arts organisations need to know when planning to film with a smartphone or hidden camera.However, it is worth keeping in mind, particularly when filming in an indoor public space.It should also be noted that the definition of ‘building’ in s 3 of the Act is very wide, and includes ‘any structure’.Section 11(1) of the Act also prohibits the publication of any recorded private conversations or their content.This includes simply telling another person about the conversation without consent from the parties to the conversation, even if the conversation was directly recorded by someone else.

Under s 3 of the Act, this does not include an activity occurring outside of a building or an activity the participants could reasonably expect might be seen by someone else.

However, the definition of ‘private act’ contained in s 207A of the Code is limited to showering or bathing, using a toilet, engaging in intimate sexual activity or otherwise being in a state of undress.

It is therefore unlikely that filmmakers are at risk of capturing such activities while filming in a public place.

There is legislation in each state and territory concerning surveillance and listening devices (which would including mobile recording devices such as mobile phones), intended to protect peoples’ private activities and conversations.

In all states and territories, there is a specific prohibition on the use of a listening device (such as a mobile phone or hidden film camera) to record a private conversation without the consent of the participants to that conversation.

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