Are Police allowed to Stop you from Recording Them?

In the year 2020, the relationship between police and citizens has never been more fraught. With the Black Lives Matter civil rights movement sweeping the globe the need to ‘police’ the police and look out for abuses of power within our society and fight back against racial prejudices in our society at large.

In the United States as well as here in Australia there has been a lack of transparency about police conduct and misconduct and oftentimes we only learn about the abuses of power or assaults by police officers against citizens because of cell phone footage taken by citizens. There’s no doubt that these videos have been vital in invigorating the civil rights movement and exposing the crimes being committed by the very people meant to be fighting crimes.

In this day and age, everyone has a camera in their pockets, so it raises the question, do Australian citizens have the right to record police officers while they are on the job?

The short answer (and bear in mind this is devoid of nuance) is, yes. Private citizens have the legal right to film the police at work if they are in a public place and if the filming does not impede the performance of the police officer’s duties. In fact, although many may not realise, in many cases you even have the right to keep photographing or filming the police after they ask you to stop. Why? Because if the police intentionally interfere in the peaceful recording of their activities by blocking the camera or demanding that someone stop videotaping that constitutes censorship.

That being said, if they felt ‘provoked’ police could arrest you under the Law Enforcement (Powers and Responsibilities) Act 2002 for such misdemeanours as obstruction type criminal offences or disorderly conduct or failure to comply with a ‘move along order’.

Police officers can tell you to move along if “they believe on reasonable grounds that you are:

 

• obstructing another person

• obstructing traffic

• harassing or intimidating another person or persons

 

• causing, or likely to cause, fear to another person or persons.”

Can Police Randomly Stop and Search Me?

According to the ‘Public Disorder’ directives, in certain cases, the police may be given emergency powers to stop and search people and their belongings even if they have not done anything wrong. This includes seizing and detaining personal items such as vehicles and mobile phones.

If It Is Legal To Record Police In Public, Why Do Police In Australia Continue To Intimidate And Threaten To Arrest Citizens For Filming Them?

Courts recognize that the recording police activities is legal. However, with technology and laws constantly changing, some police officers have not yet been trained otherwise. They may also feel his or her authority is being challenged and react accordingly.

Many police officers and citizens in Australia believe that as soon as a police officer tells you to do or not to do something that it is an order and therefore legal. However, police can only order citizens to do something or not to do something for that matter if their order is based on laws currently in effect.

What Should I Do if a Police Officer Tells me to Stop Recording Them?

If you are approached by the police while recording them, the best course of action is to calmly explain what you are doing and state you have a legal right to do so. Unfortunately, as many times as it has worked, it hasn’t and people from photojournalists to innocent bystanders have been arrested for filming the police which is why you need to know your legal rights.

Are There Cases In Which A Police Officer Can Stop You From Recording Them?

The reason why you are allowed to record any activity (including police activity) in a public place is that, according to Australian legislation, there can be no reasonable expectation of privacy while in public. The police can however, stop you from recording them if they are on private property.

There are also eavesdropping and wiretapping laws that make it illegal to use your phone or any other device to record audio of a private conversation without consent. If you do record the police protect yourself by ensuring that firstly that the filming was done openly and secondly it was done without infringing on the officer’s abilities to perform their duties.

If you have attempted to record the police and it has lead to your arrest or to your equipment confiscated, contact a criminal lawyer to help.