Legal Responses to Non-Consensual Smartphone Recordings in the Context of Domestic and Family Violence

Abstract

The increasingly ubiquitous use of smartphones is further complicating the legal response to domestic and family violence (‘DFV’). Perpetrators can now use smartphone recording facilities to record private conversations and activities of their (ex-)partners. Such behaviour may be a criminal offence of breach of a domestic and family violence protection order or stalking. On the other hand, those who have experienced DFV can record perpetrators and use the recordings in legal proceedings. The use of non-consensual smartphone recordings as evidence in DFV related cases is increasing and courts must determine when recordings are admissible. A key factor in making such determinations is whether the recording contravenes state-based criminal laws and listening and surveillance devices law. Drawing on reported experiences of the use of smartphone recordings in the context of DFV we show why further consideration and legal reform is needed if the law is to keep pace with this issue.