Friday, 7 October 2016

Aaron Smith Illegally Recorded in Disabled Toilet - Legal Argument from Jeremy Bioletti

The recording of All Black Aaron Smith and the woman he 
allegedly had sex with in a Christchurch Airport toilet raises
the important issue of whether the recording may have been
a crime under the privacy provisions of the Crimes Act.

According to media reports a person directly outside the
disabled toilet where the incident occurred used a cell phone 
to make an audio recording of the activity that was occurring. 
This apparently “left no doubt as to what was occurring.”
Although I have not heard the recording it may well be that
communications occurring between the two people involved 
were captured by way of the recording.  Clearly at no stage 
were they interrupted to inquire as to whether they consented
to being recorded.

Part 9A of the Crimes Act defines crimes against personal privacy.
Section 216A defines various terms used in the offence provisions
of the act. Under Section 216A intercept includes in relation to a
private communication to record the communication while it is
taking place. Obviously here a recording took place.
 An interception device includes any electronical device that is 
capable of intercepting a private communication. 
The cell phone used on this occasion is clearly such a device.

The section defines private communication which means

a communication (whether in oral or written form or otherwise)
made under circumstances that may reasonably be taken
 to indicate that any party to the communication desires 
it to be confined to the parties to the communication; but
does not include such a communication occurring in circumstances
 in which any party ought reasonably to expect that the 
communication may be intercepted by some other person
 not having the express or implied consent of any party
 to do so.

As the activity occurred in the disabled toilet it may well be that 
the door was closed and the particular space was sealed off. 
Disabled toilets are usually a self-contained space within the
 toilet block. This would indicate a desire by the parties
 that any communication be confined to the parties and 
that there was no reasonable expectation that the
 communication would be intercepted.

Lastly under section 216A a party is defined as any originator
 of the communication and any person intended by the
originator to receive it.

Accordingly  party is an intended party to the communication
The person recording the activity on his cellphone 
was not a party to the communication.

In this instance a private communication may  have been intercepted.

Section 216B of the Crimes Act  makes it an offence liable to
 imprisonment for a term not exceeding 2 years to intentionally 
intercept any private communication by means of an interception
 device.Section 216C makes it an offence to disclose a private 
communication or the substance meaning or purport of the 
communication of it or any part of it which has been unlawfully 
intercepted if you know it has come to your knowledge through
 an unlawful interception.

The actions of the person who made the recording and the media 
who publicised it may constitute a crime. Certainly the consequences
 for Aaron and his former partner have been severe. The woman involved
 whilst anonymous at the moment will be suffering from being hunted

 by the media and if identified may well suffer serious personal consequences.

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