Inaugural iLegal a resounding success

January 2009 Surveillance

As the use of CCTV in South Africa grows, companies are faced with difficult choices in terms of what they can and cannot legally do with their cameras and the footage they take. When is your footage admissible in court, when will it be deemed illegal?

As the use of CCTV in South Africa grows, companies are faced with difficult choices in terms of what they can and cannot legally do with their cameras and the footage they take. When is your footage admissible in court, when will it be deemed illegal?

There has been substantial movement in the international sphere with regards defining legislation around CCTV. These issues have not yet been addressed in South Africa and it is important for us to understand what has been happening overseas and to benchmark where South Africa stands before we look at implementing local legislation. To avoid a hit and miss scenario when having to submit surveillance material in legal cases, Hi-Tech Security Solutions in association with Dr Craig Donald, hosted the first iLegal conference in South Africa in October 2008.

Donald notes that there have been various judgements made with respect to CCTV over the past few years, but major issues still need to be refined by the courts before legal and technical personnel involved in the CCTV issue can achieve clarity. This rang true with the iLegal conference well attended and well received by the broad range of delegates. The topics under discussion at the conference covered issues relevant to users, installers and business owners, while the panel discussion was particularly well received. Donald’s précis of each presentation follows:

International legislation affecting CCTV by Craig Donald

There has been a lot of discussion in the international sphere regarding CCTV legislation, but most of it revolves around the issues of privacy and human rights in the age of surveillance. The argument in South Africa mainly revolves around the constitutional right to privacy. Otherwise there is unfortunately relatively little addressing privacy available in the legal domain, never mind how it relates to surveillance. This means the concept of privacy and the way it relates to CCTV will need to be developed further before local CCTV legislation can be safely deemed mature.

Additionally, IT and video transmission issues also need to be taken into account when installing a CCTV installation. Without a clear understanding of one’s legal responsibilities, these issues can make the difference between footage that convicts and footage that is thrown out of court.

How does SA law impact on your conduct of CCTV? By Adv. John Bauer

Bauer expressed concern that, from a legal point of view, there has been a substantial loss of privacy through the use of CCTV by people unaware of whether their systems go beyond acceptable surveillance. He cautioned the audience to consider the privacy issue carefully when installing CCTV systems, noting one can’t simply do what you want and expect it to be accepted in court.

He stressed it is important to remember that the people being watched also have rights, which means surveillance could be inadmissible if not implemented in an ethical and legal manner. By respecting the rights of the people being watched, we uphold the legal framework surrounding CCTV – and there is much that can be accomplished within that framework, even though specifics are still being ironed out.

As an example, he noted that covert surveillance could be allowed by a judge when the situation merits it. However, the judgement would need to be gained in advance. A business can not go into court after the fact and try to justify illegal surveillance activities.

How does SA law affect the design of your system and getting the perfect evidence? By Peter van Vuuren

Van Vuuren threw practicality into the discussion by covering some issues he has had to face where the technology chosen for a CCTV installation looked fine on paper, but proved inadequate to gain a conviction in court. He offered the discomforting thought that without the correct pictures a company will not be able to secure a prosecution, even if the images seem clear to the watchers.

The homework he left the audience with was that a CCTV implementation needs careful thought on how the cameras are positioned and implemented. The equipment specifications also need careful consideration to ensure appropriate images can be captured, and the capture process needs to be intricately planned. The standards used throughout the whole process can also make or break the implementation.

Operating in the South African CCTV environment by Keith Alexander

Alexander offered a ‘real issues’ case study in which he highlighted the fact that it is pointless to simply install one or more CCTV cameras. An effective system requires an in-depth look at the system and its capabilities, the back-up and maintenance services in place and the compatibility of the systems chosen across a range of areas, technologies and scenarios.

While many companies have had disappointing experiences with CCTV as a standalone installation, many more have had great success implementing it as part of an enterprise-wide security solution. CCTV in cooperation with access control or point-of-sale systems, for example, has delivered substantial ROI in many companies.

Panel of experts

The most popular part of the iLegal conference was the open panel where experts ranging from an attorney to a SAPS representative, people involved in CCTV-related legal action as well as those with practical knowledge of the implications of getting surveillance right were available to answer any questions audience members had. The questions asked showed a need for information relating to the fundamental issues regarding how CCTV systems should be installed and used.

One of the most important issues coming through was the necessity to ensure systems captured enough information to deliver the evidence weighty enough to overcome arguments. Critical to attaining a sufficient weight of evidence is proving the integrity of the system installed and the subsequent images. Implementations must set up strict protocols and procedures for capturing and securing footage for use in court.

Once again, the privacy issue was also raised and it was noted that we should expect some changes to privacy legislation as it is more clearly defined. Clearly defined policies and procedures in the implementation are critical to avoid a case being hung up on privacy issues.

Watermarking was also highlighted as important, although the consensus was that strictly enforced procedures in the evidence handling process is even more important for successful convictions.

Building legal and privacy protection into CCTV practice by Rob Anderson

Anderson emphasised the use of proven codes of practice to manage the relationship between the parties involved in the surveillance process, including the issue of individual responsibilities. These codes need to provide accountability in terms of standards and benchmarks people have to adhere to as part of good surveillance practices, and this also includes issues of who has access to what information and how it is handled in all phases of its life.

Cameras can be a powerful ally to business, but ultimately it is about managing the legal risk one faces, Anderson noted.

From the incident to successful evidence presentation by Juan Kotze, attorney

Kotze took a practical approach and offered sound advice on the preparation and presentation of evidence. He stressed that preparation is critical to successful prosecution. With so few CCTV cases to refer to, there have been a number of seemingly contradictory judgements from the courts. Kotze therefore advised attendees to present an argument in court with as little opportunity for ambiguity as possible to try to ensure a positive outcome.

Kotze educated the audience with practical examples from case law and precedents set over the past few years, stressing many of the key points made during the course of the conference, such as preparation, quality of images, integrity of the process and a respect for the law and the privacy rights of the people being watched.

Overall, Donald says that based on the responses garnered from attendees, the conference was a great success and dealt with many of the issues companies face when installing surveillance systems. iLegal will be held again next year to drill down into more of the real legal issues faced when installing and running a CCTV system.

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 [email protected]


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