Since the COVID-19 pandemic, people globally have started using video conferencing platforms such as Zoom, Microsoft Teams and Google Meet for work, study and social meetings.
'Zoom' has become a verb, synonymous with video conferencing. Many Zoom meetings are recorded, and often participants take screenshots showing the participants, which are subsequently communicated or published publicly.
While most platforms warn participants when the software itself is recording, there are other methods by which this can be done secretly. Apart from the security ramifications of video conferencing, there are other privacy-related issues and legal questions that are worth pondering. Some of those questions are addressed below.
Is permission of the participants required before recording?
Your everyday Zoom meeting sits at a complex junction of different laws and may occur in multiple jurisdictions that differ in approach. There are privacy laws to consider, obligations to protect private information and the more general right of privacy.
Telecommunications and recording laws regulate private conversations. Your relationship with other participants may give rise to an obligation of confidentiality, impliedly or from your pre-existing contractual or workplace arrangements. The recordings themselves can be considered property and subject to copyright laws.
The recording of private conversations or activities requires the consent of participants. Generally, the recording of private conversations should not take place without the consent of the participants of a meeting.
In Australia, the law around this sort of privacy is not settled, but in other jurisdictions a breach may be subject to litigation. In addition, all Australian jurisdictions have laws regulating the use of recording devices that may come into play. One video conference can involve a complex web of different jurisdictions and rules.
Whatever the legal situation, it is good practice to discuss the way in which you will use recordings and to obtain consent of participants. Consent can be either express or implicit. In express consent, participants are presented with a clear option of either agreeing or disagreeing with the recording of the session. Express consent can be gained either verbally or in writing.
Implied consent is generally inferred from the actions of the participants. By merely participating in a meeting, it may be inferred that although the participants have not provided verbal or written consent, they have consented to participate willingly in the recording. This only applies to the overt forms of recording where the participants know that this is happening.
At the very least, a prudent action would be to inform participants about the recording and its purpose. This can be simply stated by providing a statement at the start that outlines that the session will be recorded for educational and/or other relevant purposes.
Zoom allows the host to display a recording disclaimer to participants before a recording starts. If this functionality is toggled on, the participants will see a message that tells them the meeting is recorded and will have the option to leave or continue.
Like most disclaimers, these need to be used with care. Participants are not going to read long and complex legal boilerplate and would not be presumed to give implied consent. Keep the details short and succinct.
Depending on your circumstances the meeting may already be subject to confidentiality, particularly where there are workplace and contractual obligations. This again may be overtly part of a non-disclosure agreement or work contract, or it might be implied from the context. You can potentially also be sued for breach of confidentiality, on top of any other breach of privacy.
Who owns the recording or a screenshot of the meeting? Can they be shared?
The act of screenshotting other’s public content such as their photos, recordings and social media posts are not generally considered to be illegal.
In a video meeting, the owner of a copyright is the person who created the content, so technically the recording itself is the property of the meeting host (in law this is called a 'derivative work'). Copyright applies to the ‘written’ expression of an idea, not ideas themselves so no one owns the ideas discussed in a meeting itself, although distributing these may amount to a breach of confidentiality.
However, the sharing of screenshots of private meetings and conversations can be a privacy breach. In a landmark case, a court awarded $168,000 in damages for breaching privacy when employers screenshotted and shared an employee’s private Facebook post, which caused humiliation, loss of dignity and injury to her feelings.
This was a New Zealand case and the laws are different in Australia, nevertheless there are state and federal privacy laws that relate to this sort of information privacy that apply in specific situations, for example government departments, health providers and other large organisations. The common law rights of privacy are, as previously mentioned, unsettled in Australia.
Finally, context can be very important. Most laws require a detailed understanding of the surrounding circumstances. Whether something that happens in a meeting is considered to be public or private, subject to a relationship of confidentiality or intellectual property owned by someone will be determined by the context.
It is therefore very important to raise potential issues with the group of participants and to get agreement before proceeding. This should also be done as quickly and succinctly as possible to avoid bogging everyone down in 'legalese'.
Use your common sense, but common sense backed up with an understanding of some of the legal perils involved.
Dr Ritesh Chugh is from the School of Engineering and Technology at CQUniversity Australia.
Associate Professor Scott Beattie is from CQUniversity's School of Business and Law.Do you have an idea for a story?
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