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Privacy and CCTV

A common question asked in the industry is whether organisations have the right to install CCTV cameras within the area of their operation, or whether this infringes on people’s rights.

As CCTV is becoming more commonplace, this issue is likely to become increasingly topical. The answer, however, can vary across different counties and, even more, from public to private CCTV schemes.

Early CCTV in the UK had little restriction on what was watched in public areas. However, as footage indicating that the cameras could look into private houses began being released and talked about, the public became increasingly aware of possible infringements of privacy. Stories of operators looking into windows to observe private citizens undressing in their own homes created a backlash from citizens.

Allegations that cameras that were supposed to be protecting the public, were instead invading their privacy, created strong emotions among the British public. A story in the newspapers that surveillance operators in a well-known London department store were following the movements of Princess Di, at times very closely, also raised an outcry. Concerns over privacy and protection of personal information more generally led to legislation and electronic and physical means of blocking camera views of private houses in town schemes.

One town centre operation phrased their duty in the code of practice as follows: "The CCTV system should ensure adequate provision for the avoidance of unwarranted intrusion in areas surrounding those under surveillance." These issues also increasingly focused town centre schemes in the UK on specifying what each camera was supposed to do and making sure that such use was dedicated to this. To some extent, the debate moved from the use of cameras to how information gathered from them is handled.

The private lives and data of individuals have become increasingly protected within the UK. The introduction of the Data Protection Act, Regulation of Investigatory Powers Act (RIPA) and codes of practice have substantially increased the privacy of the British public by increasing the responsibility of CCTV schemes which view public areas. For a surveillance operator in a town centre to follow a particular individual around for a sustained period and include close up views of the person, what is called 'dedicated surveillance', police authorisation is required by law or there must be substantive suspicion that an illegal act is about to be performed.

Law now requires signage indicating that surveillance cameras may be in operation wherever a CCTV system is present in both public and private operations. Citizens, if they believe they have been recorded on a CCTV system, have the right (subject to payment of a small handling fee) to inspect video recordings to see the context in which they have been recorded.

Interestingly enough, a recent court decision indicated where camera systems are not looking at specific people, for example tracking or zooming into a person or monitoring movements, they would probably not be covered by the Data Protection Act. Despite privacy issues, and possibly because of the controls offered in legislation, the British public generally shows strong support for public CCTV.

In the US there is also a major debate over the extent to which surveillance can intrude on the privacy of a situation. In many cases, authorities or organisations are reluctant to even introduce zoom cameras because of privacy issues. Peter Fry, writing in CCTV Vision, notes that in California they have introduced legislation that bans police from using CCTV cameras with zoom lenses for surveillance.

Similar legislation exists in some states to control actions that would be equated with the UK equivalent of 'dedicated surveillance'. At the same time, many Americans appear to be ready after 9/11 to embrace CCTV as a necessary evil. However, the extent to which this occurs is still heavily up for discussion.

Similarly to the UK, there is an emphasis on having to explain the purpose of the scheme more generally and the camera purpose specifically in order to satisfy legal and privacy concerns. How the information gathered by schemes may be taken further is a concern. For example, information gathered by one system may be transmitted to, stored and shared by systems that may have no such controls or relevance to the people in the original scheme. This reflects the kind of control envisioned in the movie, 'Enemy of the State', which features a government official with the ambitious plan of incorporating all electronic monitoring site information including CCTV into a central government monitoring agency.

The issue of public CCTV and rights of the individual and fear of 'big brother' has dominated the UK and US discussions. Given the concerns for public safety and the protection of constitutional rights in these countries, far less consideration has been given to issues relating to using CCTV to cover industrial, commercial and other business operations.

In SA, there has been a degree of caution in how public systems go about viewing the public. Similarly to the US, SA has the right of privacy reflected in the constitution as part of the fundamental right of citizens. However, it appears far less of an issue here with people generally comfortable with the idea of having additional protection in public spaces against the extremely high levels of crime. However, CCTV in South Africa is dominated by schemes operating in business and these private schemes are very different from those doing surveillance in public areas. There are questions about when and where one can put up CCTV cameras and what one can watch.

It is always wise to get legal opinion on this kind of issue and this discussion is not aimed at replacing this. There are some broad principles involved, however, that I will touch on in this discussion. The respect for privacy of the individual needs to be offset against the employer's legitimate right to protect property, proprietary knowledge, or the integrity of the production process. Employees' conduct during the time within the operation is seen to be associated with the activities they are expected to perform. Within this context, the organisation can be expected to view their performance as part of any audit of ongoing work requirements. They may usually be subject to physical inspection by a supervisor or a security guard, for instance, and in such a case the camera provides a remote means of doing the inspection.

While there is a legitimate expectation of privacy in some instances or locations, the general work routines and expected services of the employee are things that appear to fall outside of this. However, in the same way that public surveillance has to have a purpose behind the camera, one could expect a camera within a private operation to address specific purposes. To put a camera where it serves no obvious purpose in terms of security or production monitoring may be more questionable, or to use it for different reasons than those stated could involve a violation. Collecting shopping habits of individual customers in a retail store through surveillance, for example, may create a perspective that privacy has been violated.

There are also locations where employees have a legitimate expectation of privacy such as toilets. While there are undoubtedly occasions where employees may use the privacy of such a location to hide or pass stolen goods, the right of privacy would appear to outweigh the rights of the employee to conduct surveillance in a non-working environment. The employer could be expected to detect the crime before or after the employee visits such a 'private' location. Employees who are put under surveillance for no reasonable work explanation, for example an operator viewing pretty women in the operation for overly long periods, could lead to accusations of invasion of privacy, or even in extreme cases of sexual harassment.

Employees or visitors need to know that they are under surveillance within the operation. Being informed is a key aspect to avoiding allegations of invading privacy. To this effect, signage should be erected indicating this and it should be incorporated into contracts and conditions of service. In the UK, it is acceptable to place such signage at the entrance or entrances to the site and not necessarily throughout the site.

Also, there is no need to specify whether the surveillance is going to be overt or covert. Incorporating this in signage or documentation would, however, place the employer on a stronger footing. The purpose of the CCTV camera coverage should also be made evident, ideally through a clear statement of operational requirements. This clearly indicates the right of the employer to conduct such surveillance and the reason it is there. At the same time, it means that non-relevant surveillance can also be defined more clearly. The employer also needs to respect areas where it is reasonable for the employee to have a legitimate expectation of privacy, or to avoid surveillance that does not comply with the stated purpose of the system.

For more information contact Craig Donald, Leaderware, 011 787 7811, [email protected], www.leaderware.com

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