With many professionals currently adapting to working from home and engaging in online meetings with their clients, it is essential to understand that some prohibitions apply to meetings conducted in person as well as to meetings conducted by electronic means (such as Zoom, Google Hangout, etc..).
A strata manager, for instance, may want to record meetings of the Owners Corporation to ensure the accuracy of the meetings’ minutes. Whether an owners corporation’s meetings are held in person or by electronic means however, the Surveillance Devices Act 2007 will have to be taken into consideration.
Section 7 of the Act prohibits the installation, use and maintenance of listening devices to record a private conversation, unless:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation—
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
Essentially, the strata manager will need the approval of the owners attending the online meeting, before being able to record the meeting.
Section 12 of the Act prohibits the possession of record of a private conversation or activity that has been obtained, directly or indirectly, by the use of a listening device.
Exceptions include the situation where the record is in the possession of the person—
(b) with the consent, express or implied, of all of the principal parties to the private conversation or persons who took part in the activity…
Again, the strata manager will only be able to keep a record of the owners corporation’s meeting after obtaining the consent of the owners taking part to the meeting.
An efficient way of obtaining the owners’ consent in compliance with the Surveillance Devices Act 2007 is to approve a special by-law allowing all meetings to be recorded however, there may be an argument that individual lot owners (and their proxies who may not be bound by the scheme’s by-laws) did not specifically consent to the recording. For this reason we recommend even if you have a by-law authorising meetings to be recorded that an announcement be made at the start of every meeting that it is being recorded in accordance with the relevant by-law. It is then up to a lot owner, proxy or meeting attendee to determine if they object and to consider if they wish to leave the meeting.
If you are considering a by-law allowing to record your meetings, please contact Kerin Benson Lawyers. Our experienced team will be happy to assist!
Article authors: MA and AB.