Yesterday the NSW Department of Justice posted a warning to all enthusiastic Pokemon Go players not to use any recording device in a Court having regard to section 9 of the Court Security Act 2005 (NSW)(the Act).
It is worth taking a moment to review the Court Security Act 2005 (NSW) to consider what use of recording devices are prohibited in a NSW Court.
Prohibition on certain “use” of a recording device
Unless an exception applies, subsection 9(1) of the Act states that:
The subsection also includes the following helpful note:
Note : This subsection only prohibits the use of a recording device to record sound or images (or both) and not any other use of the device. For example, this subsection would not prohibit a person from using a mobile phone with recording capabilities to make a telephone call, but would prohibit the use of the phone to record court proceedings.
From my own observations, solicitors and barristers may often be found peering intently at their smart phone or iPad while waiting for their matter to be heard or even during a hearing of a matter. This can be to check emails, view documents stored online, obtain instructions etc. However, what makes such use permissible is that it does not involve recording sound or images (or both).
Turning to Pokemon Go, the application has a feature whereby images of monsters are superimposed on top of the image displayed from a device’s rear mounted camera (a feature referred to as “augmented reality” or “AR”).
If you take a “screenshot” with AR mode activated on Pokemon Go, you will be breaching section 9 of the Act; similarly, there is also an argument that the live streaming of visual images from the camera during a “capture” constitutes a prohibited use for the purposes of section 9 of the Act.
Tip: there is an option in Pokemon Go to switch off the “AR” mode and instead use a pre-rendered virtual background so that no image is recorded from the rear mounted camera of a device; such use of a smart phone or iPad would seem to fall outside the operation of section 9 of the Act as there is no such record of sound or image taken in Court.
Having regard to the above matters, it seems the Department of Justice’s Facebook post is somewhat overstating the scope of section 9 of the Act. On the one hand, I acknowledge it is important to prevent children (and adults!) from inadvertently breaching the general rule against the use of recording devices, but on the other, a blanket statement of the kind published yesterday is rather egregious having regard to the common occurrence of ordinary and permissible smart phone and iPad use in Court.
Having said this, I can understand how disconcerting judicial officers may feel with overzealous Pokemon trainers pointing and waving their smart phones or iPads in their general direction even with the “AR” mode switched off.
In the circumstances, you might wish to switch AR mode off and keep your device lowered if you are so inclined to play Pokemon Go in Court premises, or even more prudent, stick to perusing your emails, cases and documents. Unless you have a burning desire to address an open Court to defend your Pokemon Go proclivities.
This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular circumstances or on matters of interest arising from this article.
Stratos Lawyers is an [unofficial] advocate for responsible Pokemon Go play.