The recent deployment of smart sunglasses onto the market has sparked controversy about privacy laws across the globe.
Smart glasses are AI-powered, wearable tech glasses.
They allow users to capture photos and videos, take calls, and listen to audio via open-ear speakers, with real-time voice interaction and analysis.
However, the glasses have recently sparked controversy, with many complaining that the product is being used to film people without their knowledge or consent, with that content often being published to social media.
It is possible that the use of these devices could enliven South Australia’s surveillance laws.
South Australia’s position
South Australia, like other Australian states and territories, impose strict laws concerning the use and recording of private conversations. Except in limited circumstances, it is illegal to record a private conversation or activity without the consent of all parties. This is governed by the Surveillance Devices Act 2016 (SA) (Act).
The Act provides that the use of a listening, optical surveillance, tracking or data surveillance devices that audio or visually record private conversations or activity without the consent of all parties is prohibited. The prohibition applies regardless of whether the person using the listening device is a party to the relevant conversation.
The Act provides very limited exceptions, namely where:
- The parties to a conversation consent to the use of a listening device.
- A listening device is needed to protect the lawful interests of a person.
- The use of the device is in the public interest
The Act imposes significant penalties if someone is found in breach of the Act. The maximum penalties for committing an offence under the above sections is a fine of up to $75,000 for a body corporate or a fine of up to $15,000 or imprisonment for a maximum of three years for an individual.
Express or Implied Consent
Implied consent appears to include situations where the parties to the recording were made aware of the recording and acquiesced or continued to participate in the conversation.
The NSW (which has similar legislation) case of Brown v Etna Developments Pty Ltd (Surveillance Devices) [2025] NSWSC 218 had the below reasoning when considering implied consent:
[12] Having viewed the video, I am comfortably satisfied that the video was taken with the implied consent of the fourth defendant. The fourth defendant had knowledge that his conversation was being recorded: he could see that he was being filmed, and he was told that he being filmed. By his conduct, the fourth defendant evinced an acceptance that, in order to continue to have this conversation with the plaintiffs, he would be filmed. The fourth defendant did not have to continue the conversation, either on that condition or at all, but he continued to converse with the plaintiffs at length. He did not object to the condition, beyond muted complaints voiced sometime later, accompanied by comments indicating his resignation to the condition, “that’s what people do now. TikToks … Facebooks.” The recording thus does not fall foul of the prohibition in s 7(1) of the Surveillance Devices Act. Nor does the tender of the recording fall foul of s 11(1) of the Act.
The decision from the New South Wales Supreme Court appears to provide that implied consent may be inferred in the circumstances from the conduct of the individual.
Effect on Smart Sunglasses
It is unclear whether the glasses, most of which contain an LED indicator, is visible enough to alert people that they are being recorded. However, with individuals reporting that they were not aware they were being filmed or claiming that the LED indicator was disguised by the user, it is possible that the courts will not consider that the light alone is enough to alert people that they are being recorded.
Key takeaways
The glasses serve as a reminder of the requirements in South Australia about recording (and publishing) private conversations. To avoid doubt, if you intend to record and/or publish a conversation on social media with smart glasses, it would be wise to seek the express permission of the other parties to the conversation.
