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The legal standing of public video footage

CCTV evidence is typically treated to a strict scrutiny of a range of technical, legal, operator performance, and quality of evidence criteria in any disciplinary or court process. This applies whether it is in private organisations or the public domain. Included in this scrutiny is whether suspects can be positively identified, when and where the footage was obtained, any kind of handling of the footage and preservation of original video evidence which should be sealed. These legal considerations have given rise to extensive procedures and training in evidence handling, and are often targeted by defence lawyers.

The introduction of cellphones as recording devices for audio and video has introduced an explosion of potential recording in many situations. Members of the public now have the potential to pull out a phone and within seconds they could be recording incidents around them, or that they are involved in themselves. In Australia, the situation has got to the point where even at the end of normal news broadcasts, people are invited to send through video footage of news events they have recorded. More recently, police handling of a number of issues in Australia have been subject to being recorded by members of the public with fairly grave consequences to the police involved and the police force reputation. Part of the police calls for video to resolve the Boston Marathon bombing included video of any kind that may be of relevance, not just CCTV, and which could include cellphone footage. Publication of video on events on Youtube or Facebook is also becoming common, including crime events. In Australia again, there have been postings of people with CCTV footage in their homes publishing the video of burglars stealing from their homes on Facebook and asking if anyone knows the suspects.

In court cases, the introduction of such cellphone evidence is also subject to stringent review, similarly to CCTV. The case of Judge Nkola Motata where audio was recorded after an accident was critical to the final judgement, but substantial legal questioning was made of both the cellphone evidence and the owner of the cellphone himself. We have had similar reactions to use of other video introduced into court, whether via professional cameraman, video cameras operated privately, or cellphones.

The production of public video via cellphones and decisions being made on this seem to have skirted all of the legal obligations commonly found in court cases. In this sense, the potential for trial by media seems to be an increasingly common phenomenon. Similarly, Youtube video has also had major consequences where the publication of video has produced a management or executive decision based on the video which has directly affected the people displayed in the video. Interestingly, South African examples, like some of those in Australia, show those responsible for law enforcement seem to have become a target for such video. The police who were alleged to have dragged a suspect down a road behind a police van is an example. In other environments teachers have been both punished and defended by cellphone footage. These public cases may show events that rightly are cause for concern and need to have attention drawn to them. However, what does become concerning is that decisions are being taken without any of the legal scrutiny that may have been received in a court environment.

The context in which video was taken and events that may have surrounded it, the motivation of the people taking it, the integrity of the video and whether it has been manipulated are all too easily disregarded on the public stage. Indeed, in some cases people have released the video in order to call attention to issues while remaining anonymous and to escape victimisation. However, we need to be careful to acknowledge that media exposure or Youtube hits is not what defines the credibility of video evidence, whether this is based on CCTV, or mobile devices such as cellphones. Are we seeing the emergence of two parallel systems for evidence – the court process and the popular media one? In a country where fair and just legal due process is being increasingly questioned, popular video may be seen as an ideal alternative. Yet it may contain its own Pandora’s box of issues which we will be facing in the next few years.

Dr Craig Donald is a human factors specialist in security and CCTV. He is a director of Leaderware which provides instruments for the selection of CCTV operators, X-ray screeners and other security personnel in major operations around the world. He also runs CCTV Surveillance Skills and Body Language, and Advanced Surveillance Body Language courses for CCTV operators, supervisors and managers internationally, and consults on CCTV management. He can be contacted on +27 (0)11 787 7811 or craig.donald@leaderware.com

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