duffbeer2015

I don't want to confuse anyone - but I thought I would air my thoughts on this. It sounds over complicated, but, like Charlie said above regarding EU law overriding UK law. You would expect on shared competency issues (i.e. agreement in what the EU courts and EU institutions can make policy on) would be agreed and be unified across the continent to help and assist member states meet there own obligations. But here we have a judgment which potentially creates an imbalance of Article 8 rights under the ECHR. This imbalance potentially creates a liability on the UK state for compensation or damages or rectification (or whatever other remedy) for simply following what the court of justice of the EU has told 'us' to follow. Potentially leaving the Information Commissioner and joe public in an uncomfortable and uncertain position. You would think by saying any and all public space is covered would simplify the situation, but I think it makes things worse. It fails to take account of the necessity that some people may have to film those areas because they are unable not to film those areas if they wish to protect their own property by way of cctv. From one EU law book I have, it reads that (and I don't want to confuse anyone that hasn't got the foggiest of what I am talking about) it is possible for action to be taken at the European Court of Human Rights actually against an EU institution (which includes the European Court of Justice or the Court of Justice of the European Union as it is called now). It says:- 'In.....Cantoni -v- France App No 17862/91 the court of human rights ruled that the fact that a national measure was adopted (here the interpretation of s.36 DPA because of the EU directive) in order to comply with an EU Directive, and indeed replicated that Directive almost exactly, did not affect the State's obligation to ensure that the measure complied with the ECHR...' So, it is quite possible for the ECJ judgment on the facts of that case, where I believe it found that the appellant was filming a public space because he was filming the front door of someone else's property to be broken down into tiny fact based results. The end result could be that when interpreting that judgment, the UK courts (because they have to interpret any and all legislation in a manner compatible - s.3 HRA 1998) could construe a 'public place' (for the purposes of s.36 DPA) as being any public place where it is not strictly necessary for the domestic cctv operator to film in order to meet his or her personal or family protection rights. That to me would mean that if joe blogs is filming the 1x1 meter public street space at his front door, that he / she still falls within the exemption so long as it is necessary and proportionate to do so. It also says in Article 6(2) of the Treaty for the European Union that:- 'The union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.'

No, I completely agree. I think the narrow interpretation that the ECJ gave it was wrong. I think it was wrong to blanketly rule that any public space falls outside of the domestic exemption, like you say, it is what you do with it that counts i.e. if the purpose is still to protect your own home and your own family then it should still fall under the exemption. I mean, some people's property CCTV will have no choice but to film even a limited amount of public footpath (for example) because there front door might lead directly onto the pavement/highway....

To be more precise, the court ruling has direct effect through the European Communities Act. Having said that, the ratio of the case deriving from the material facts makes binding the 'video surveillance' element only, so not much damage is done to items or devices not used for video surveillance purposes. It will be interesting to see where it goes.There may even be a conflict of laws due to the blanket nature of the ruling on the interpretation v-s the proportionality of state intrusion of persons exercising ECHR rights. Don't forget that whilst EU law is automatically applied through the EC Act, so is the convention through the Human Rights Act 1998 and that is also newer. I am thinking that there may be a conflict in the blanket effect of the ruling. Saying all of that, maybe the ICO will introduce an easier and cheaper option registration system for individual users if an individual does wish to capture a public area whilst protecting his / her own property - that way the individual cannot complaint that he has had a disproportionate interference.

I'm not taking it up with them unless they decide to intrude on my own business.

Thanks for that sixwheeledbeast that is greatfully appreciated. I have no idea and I am quite shocked why one of the main sources had not correlated that case with s.36, in fact it is only found as an independent case searching EU law. The problem with that is that whilst the preliminary ruling has a legal effect, it does not change the position in how the UK has already transposed the 1995 directive into a domestic Act. Exemptions under Article 13 of the Directive, for example, are not specifically categorised the same in the Act, the Directive simply gives the legislator the leeway to implement exemptions according to the wording of Article 13 in whichever place it requires. The problem with that is it then shifts people onto other exemptions and like some have said, licences for this and for that, it gets messy.

If you have any links to these changes I would be greatful, I have checked what sources I have and I cannot find anything which changes s.36 DPA.

Hi luggsey, because that would be a criminal matter it doesn't really matter whether it is a fixed camera, a PTZ or a camcorder (although it must be possible for the device to actually do what the complainant is allegeding it is doing etc) all that matters for that is the physical and mental element to the crime - i.e. has or is the alleged carrying out a course of conduct (the physical element) (2 or more occasions) which he knows or should know is likely to cause harassment. Obviously in what constitutes harassment the court has leeway to look at all of the circumstances of the case. There are too many scenarios to list but for example, a good starting point for any harassment allegation is a warning letter. I suppose that is why police sometimes send a warning letter to people first before they take any action, that way, even though the alleged offender has only committed an act once - he cannot then claim that he did not know that was he was doing was harassing someone because he had received communication telling him that it has caused harassment to someone - if he then does it again (a second time) he might be nicked. Obviously what constitutes harassment is a big open area. The camera in itself is not offensive.

Section 36 has been in force in it's current form since March 2000, there are no changes to that exemption. Maybe the ICO are keen to clamp down on those that are not domestic users but are not properly registered I can't comment on that. Of course the ICO are also free to publish guidance and policy documents but obviously whilst they may be useful, you will see that most of them will say that they are not an authoritative statement of the law i.e. they have no legal force. haha, yes, I've heard that one on the news - I for one hope that story was not true or that police force need a good kicking...

I am sorry but that is an incorrect interpretation of the legislation. The Section 36 DPA exemption relates to the purpose of the data processing NOT the geographical area, where you film is wholly irrelevant. Otherwise, it would capture people that film in 'any time public space' on mobile phones etc, but it does not. You can film any location you like so long as the purpose is for domestic purposes. The only exception to that is court premises where it is illegal to film inside the building or some other protected land where the secretary of state has made an order - such places like Military establishments or MOD property, but there would have to be secondary legislation in the form of an order to cover that. I am not sure when you talk about public space if you are referring to training or policy relating to SIA public space surveillance, if it is that you are referring to; then that does not apply to domestic people, only to data controllers who provide public space cctv.

No Charlie you are right, that is not an invasion of privacy because of the deemed acceptance of those entering the gig and the fact that it may also be a public place 'on payment or otherwise'. So there would be no reasonable expectation of privacy in relation to visual images. There is also an exemption from the DPA for journalistic purposes. However, the security guards that utilise cameras or any CCTV installed for the purposes of security at the gig will be covered by the DPA. if you are dancing away near the stage and you are captured by a security camera, you are quite within your rights to make a s.7 request for a copy of that image - however, if you are captured by a punter who is dancing next to you, he won't be covered so you can't ask him for a copy of your image. (Unless he is an undercover police officer) lol. Jamie, it does not matter if you are filming public spaces so long as you fall within the domestic exemption - which is that you are filming for domestic purposes. Another way to look at it would be if you was to take your camera down from the wall of your house and or take your own personal camcorder out and film that very same public place which captures some of the public going about their business - you are still exempt if the reason for doing it is for domestic purposes. If for example, whilst you are standing there as a personal domestic person with your own camcorder, Mr Blogs stands next to you doing the same thing filming the same public space but he is doing a traffic survey or (insert reason) as an employee or agent for the highways agency (insert company or organisation etc) he will be covered by the DPA because he does not film for domestic purposes, he is filming for some official purpose in an official capacity. If he then says stuff this I've had enough now I've got all of my official video, pulls out his own camera phone and says "I like it here I want to take some images for my own personal recollection as I love the views" he can then legally film the area for his own personal use. So on any occasion you need to look at the status of the users (the data controller) and the purpose of use. There could be a situation where for example there is a conflict. A good example could be Mr nosey neighbour has been using his own personal CCTV on his house for many years. One year he decides to set up a community home watch scheme and invites his neighbourhood to set up a video link system between his own CCTV and multiple neighbours CCTV so that they can all link in together and monitor around the neighbourhood real-time whenever they spotted someone who they deem acting suspiciously. Whilst such a system may be for the purpose of prevention and detection of crime, because of the extent of the system and even though it is controlled by multiple domestic users, the fact that others can link live into other people's systems might deem it to be an organisation (even voluntary) where they are covered by the DPA. The same can be said of any shopwatch scheme that uses radio communications to speak with each other only if that system records what is being said and captures personal information such as the name of any alleged offenders or other personal information - potentially any recording which then captures personal information could be disclosable. I suspect that most of those radio communications systems don't record what is being said through a repeater etc so it would not be covered by the DPA.

Not sure where you got that from, if you have any info I would be grateful. I have checked section 36 of the DPA and it is still current and in force. I cannot find any tabled amendments or any Bills before parliament and the latest case law also supports the continuation of s.36 which says:- 'Personal data processed by an individual only for the purposes of that individual's personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III' I am not sure if you have confused the statement you posted above - which maintains that '....if you cannot rely on the domestic purposes exemption...' - so the ICO does not have jurisdiction if a person asserts that he is processing personal data for domestic purposes. Those purposes have to be construed widely so that if a person chooses to record the grounds of his property and by so doing he captures others then the prime purpose will still be for domestic purposes. The ICO would have to be careful because if a person is using CCTV for domestic purposes any enforcement notice would be void because the principles do not apply to a domestic person. Similarly because the principles do not apply to a domestic person there is no powers to inspect and any warrant (presumably a circuit judge knows the law) if issued (which it probably would not be), would also be void. The worst case scenario is you would then have the ICO committing trespass and or criminal damage - which is the same actions taken against the police when it turns out they have a void warrant. So in short, the ICO has no power to do anything about a domestic person. The powers they do have cover organisations, businesses, companies or other bodies which fall outside of domestic purposes.

Land title has nothing to do with it - it is the status and purpose of the user(s) which is relevant .

The short answer is no -you can legally record voice and video / images. . The Data Protection Act does not apply to an individual person acting in an individual private capacity. You can legally record CCTV and Audio on your own property which covers your own property. The ICO has no jurisdiction to investigate a private person acting in a private capacity. HOWEVER;- There are a number of criminal and civil matters to consider so that you do not fall foul of the law:- The Courts have the power and the jurisdiction under three strands - these are the common law principles of misuse of private information / Private nuisance and the right to privacy enshrined in domestic law by the Human Rights Act 1998. The court as a public body has a duty to ensure that an individuals privacy rights are being maintained or are complied with or restored. Therefor, if you was to record images or audio in a way which the court would deem a disproportionate interference with the private and family life of another person it may issue an injunction. If the High Court issues such an inunction and that is breached that could lead to contempt proceedings and ultimately committal to prison. So you must generally make sure that what you are filming is either on your own property or directed towards your own property or covers a public place where there is no reasonable expectation of privacy. A good example is setting a camera position to a neighbours front windows which can see through the windows therefore intruding into their private and family life - that would be something which would justify an injunction against someone to stop them from filming in such a manner. You have also to think about the Protection from Harassment Act where it could be deemed harassment to carry out a course of conduct (2 or more occasions) where a reasonable person with the same information would deem it to be harassment. The courts are likely to deem repeated filming into other peoples property which captures private or intimate moments as falling within the definition, for example, filming into someone's house. The defence for that is that anything filmed was for the purpose of preventing or detecting crime.