Filming of security interventions in and around public places is a common occurrence. We are now familiar with broadcasts across the media of dash-cam and mobile phone video images that have been privately captured by members of the public. In fact, police often call on members of the public to provide them with any privately captured video images to assist in their investigation of crime and road traffic incidents.
However, two recent and separate security-related incidents occurred in Victoria where witnesses used their mobile phones to visually record patron ejections from licensed premises. On both occasions and shortly after the ejections, security staff confronted the witnesses, took possession of their mobile phones, deleted the recorded video files before returning the mobile phones to each respective witness. In one case the crowd controller concerned was dismissed by his employer and other crowd controllers who assisted him were disciplined. In the other case the crowd controller was warned by the licensee not to repeat the behaviour albeit the licensee was unclear whether such behaviour was unlawful or not.
These incidents highlight growing concerns about the lawfulness or otherwise of filming people in public places and if security staff are filmed in the performance of their work, what is the appropriate response.
This article explains the current position relating to filming through mobile phones in public places. It also explains practices that should be followed by security staff to ensure unlawful or unprofessional acts are not committed when filmed by members of the public. It should be noted there are many circumstances where a “public place” involves activity on private property such as a shopping centre, licensed premises, concert hall, sporting ground, airport and other places where the public are permitted to enter, whether for payment or not.
Does a person have a right to privacy in a public place?
Situations where operational security staff are filmed by a member of the public during work are more likely than not, especially in areas where there are increased levels of public activity. Increased levels of public activity are evidenced at public places listed above. However, do members of the public including security staff have a right to privacy in a public place?
In general terms, individuals in Australia do not have a right to privacy that protects the person’s image. There may be circumstances where a person’s image constitutes “personal information” under the Privacy Act 1988 (Cth) but the Act applies to businesses and agencies, not individuals who may film activity of security staff. Similarly, under Australian consumer law celebrities may be protected when filmed if reproducing their image misleads potential consumers into thinking there is an endorsement of their products or services by the celebrity. This applies to celebrities and trade practices, not to filming of incidents or security staff working in public places.
Put simply, outside the examples above there is no legislation either way to allow or not allow filming in public places to protect a person’s image or their privacy. There is no tort of invasion of privacy and no precedents in Australia at this stage that allows for a civil action to recover damages according to ordinary principles governing damages in tort.
Crime, surveillance and listening devices
Where the civil law addresses private disputes, the criminal law, amongst other things proscribes conduct considered threatening, harmful and damaging to the good order of society. Many acts such as assault may have individual victims however violence is an action that is harmful and impacts upon the good order of society hence is punishable under the criminal law.
Ongoing filming of the same security staff may involve an allegation of criminal “stalking” albeit there must be some course of conduct upon which there is an intention or recklessness about causing someone else apprehension or fear. A person aggressively pushing their mobile phone into the face of a security officer may also unwittingly commit an assault. The response to stalking and assault typically involves a crime report to police or arrest of the perpetrator to be handed to police.
Each Australian State and Territory has legislation concerning use of surveillance and listening devices. The legislation seeks to protect individuals and their private activities and conversations. Recording of private conversations using listening devices is specifically prohibited. A mobile phone could be considered a listening device however it would be difficult to claim a private conversation was being unlawfully recorded where a person is openly filming activity in a public place and is a party to the conversation.
Succinctly, the current legal position appears to be, subject to the above it is not unlawful to openly film security staff working in a public place using a mobile phone. This then poses the question, what can be done when filming occurs?
Can a phone be seized from a witness?
Seizing another person’s property must be in accordance with the law. Seizing an exhibit to prove a crime is recognised by the common law however seizing property where there is no crime is another matter.
Seizing a person’s phone exposes the taker and any other person assisting the taker to allegations of assault. By definition assault not only involves physical application of force but also can be committed in circumstances where a person is placed in fear of immediate force through an assailant’s conduct. If an injury results from the seizure, then the assault is deemed more serious. The taker could also be charged with a property-related crime such as unlawful possession. Unlawful possession is a crime in Victoria and committed where a person possesses personal property reasonably suspected of being stolen or unlawfully obtained, irrespective of the reason for the taking or the time the personal property was possessed. Unlawful possession is one of a few crimes where the onus of proof is reversed which means the person in possession of the personal property must prove they lawfully possessed the property.
Further to the above, it must be remembered that any criminal proceeding including assault or a property-related offence can impact upon an individual’s eligibility to hold or retain a security licence. My advice is to avoid any circumstance where a phone is taken from another person filming security activity.
What can be done if filming occurs?
Where filming on a mobile phone is occurring during an ejection or other security activity, security staff can ask or direct a person not to film. However, this is an enforceable request if the person filming does not desist.
As filming cannot be prohibited it is important that security staff closely align with appropriate practices in the selection of tactical options for any intervention or ejection. If a trespasser is being removed from premises ensure you align with your training and operating procedures in the use of force. If a shoplifter is being arrested and escorted back into the store ensure you align with your training and operating procedures in managing the perpetrator. If you are unsure about your legal rights operationally then adopt a cautious approach rather than be caught on film acting outside appropriate practices.
Further to the above, if you are aware mobile phone recording is occurring you can also rely on recorded images in the workplace. For example, by understanding the location and coverage of CCTV cameras in your workplace you should ensure work is performed in areas under surveillance. This will enable capture of CCTV images relevant to the incident. Your supervisor or manager should be informed of the incident, the relevant CCTV files extracted and retained, and an appropriate report made in the incident register.
It is important to remember that any recording is an accurate, independent and impartial witness irrespective of whether the images have been captured by witnesses to incidents or not. Like mobile phone recordings, CCTV images are also of value to show exactly what behaviour occurred by persons present during an incident. Captured images can provide evidence of professional conduct during operational activity. Accurate incident reporting and identification of eye-witnesses can then corroborate assertions of professional conduct. Collectively, filmed incidents captured on mobile phones or otherwise will disclose the actual course of conduct by security staff, irrespective of assertions made outside of private mobile phone filming. Where staff follow their training and operating procedures, private filming in public places is not to be discouraged as it will merely confirm professional conduct by security staff.