The recent altercation between PSP and PAP volunteers taking videos of each other in their resident outreach programme is a storm in a teacup. As a police report has been made of a claim of physical assault, let the due investigation take its course. I like to address a broader issue here, one where many have asked before. Is it illegal to take photos or video-audio record people in public?
"No expectancy of privacy": This is a legal doctrine used to determine whether a person has a reasonable right to privacy in a given situation, especially in cases involving surveillance, recording, and search or seizure.
That means when someone is in a situation where he or she cannot expect privacy, then there is no violation of law for their actions, words or appearances to be observed, recorded or documented by anyone.
Such places where one cannot expect privacy are public places, which are places accessible to the public generally. A school or some offices which do not permit entry to people who have no business to be there, is still a public space. A privately-owned property serving the public, such as a restaurant, a shop, a gymn, etc, are public spaces. The MRT, buses, taxis, parks, etc are of course public spaces.
On the other hand, the rest rooms or toilets and bathrooms in these public places are not 'public' because there is expectancy of privacy in such places.
Under this general rule, CCTV surveillance is legal if installed in public spaces. Police can perfom searches or surveillance in public. You are free to record all you want in public spaces.
However, beware of exceptions to the rule, that is "private acts in public spaces". This is touchy and would require a court's decision. For example if someone tries to change his/her clothings and made attempts to conceal their acts, a mother breast-feeding, or a drunken woman lying down and exposing some parts, a mentally-challenged person exposing himself/herself, etc. On the other hand, a couple in heat and engaging in lewd acts in open public cannot expect privacy.
Sanctity of private space: - It is an intrusion of privacy to record into a private space even though the recorder is in an open space. Casual and passive observation into a private space such as through open windows, doorway, front or backyards, is not an offence. It becomes an intrusion of privacy if the observer persistently observes, uses devices like binoculars, or positions himself more advantagesly like climbing his fence or uses a ladder etc.
Finally, there are public places which have security restrictions that forbid recording by anyone.You can get shot at before you can shoot any pictures.
Use of recordings: While it may be legal to record in public spaces, using or sharing such as posting online, may have harassment or defammation issues. It may also have copyright issues if recording performances. There are of course criminal issues if it is used illegally, such as for blackmailing, cause embarrassment, intimidation etc.
How the recording is done: Specific laws of harassment or stalking may be violated if the recording is done in an aggresive, intimidating, threatening or intrusive manner. This is the crux of the PSP vs PAP team altercation.
Stopping someone from recording: Generally, in public places where there is no expectancy of privacy, one cannot stop others from doing their recording if they are not violating any law, such as harassment and intimidation. But there are however, ethical considerations when it involves the vulnerables such as children, elderlies, handicapped, drunks, etc.
Application of no expectancy of privacy: Different jurisdictions have varied scope of what is a reasonable expectation of privacy.
In US this is enshrined in the Fourth Amendment that deals with protection against unreasonable searches and seizures. It relies on a 1967 landmark case of Katz vs US where the test is - did the individual exhibit an expectation of privacy, and is that expectation the society is prepared to recognise as reasonable?
In Singapore, privacy-related issues are addressed through existing laws on confidentiality, data-protection and specific offences under the penal code. For our purpose here, the following applies :
* Penal Code S44 Criminal Trespass - If you step into a private space without consent, it is a criminal trespass.
* Penal Code S377BB Voyeurism - it is an offence to observe or record someone in private without their consent (such as in bathrooms) or recording under skirts, etc. Max 2 years jail and caning.
* Penal Code S377BE Distribution of Intimate Images - it is an offence to share intimate images or videos of someone without consent. Max 5 years jail, caning.
* POHA Protection from Harassment Act - it is an offence to persistently follow and record someone in a manner that causes distress amounting to stalking and harassment.
Special case of audio recordings: - Some jurisdictions have wiretapping or eavesdropping laws, which also covers video recording with audio. Jurisdictions are split into "one-party consent" and "all-party consent" states. As the name implies, "one-party" means the recorder does not need anyone's consent; "all-party" means everyone has to consent. This is to protect private conversations. So taking a video of a crowd is not a problem as long as private conversations are not captured. California and Canada are examples of "all-party consent" jurisdictions.
Singapore is a "one-party consent" jurisdiction. There are no laws explicitly relating to the secret tapping of a conversation so long as one is a party to it. It is not illegal as long it is not used illegally. Under the Evidence Act such recordings are allowed at the discretion of the courts which take into consideration the relevance and authenticity, and whether they are fairly and legally obtained.
When in doubt - mobiles down; don't shoot.
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