One problem is, what can the subject do about it? A few years ago there
was a case of a private investigator who (I think) entered a person's
property and photographed them. I think that the case was about someone
who claimed to be injured. The court found that the photographs were
usable by the employer (and the subject lost the case) but that the
subject (if they could afford it) may have some redress against the
person who took the photographs. The chances are that they will not have
made much money against the photographer.
However, this is just a personal recollection of a case that I read, I
am open to correction and the case may have been superseded.
One of the problems with the DPA is that most people on this list will
say (me included) that "this is what we ought to be doing" but, if asked
"what are the possible outcomes if we don't" the answer is likely to be
"very little apart from some bad publicity".
Tony
P.s. Sorry, Friday afternoon syndrome again.
-----Original Message-----
From: Paul Ticher [mailto:[log in to unmask]]
Sent: 01 December 2006 11:07
To: [log in to unmask]
Subject: Re: Photographs and DPA/Human Rights
I guess a printed photograph on its own isn't personal data, because
while
it might contain identifiable living individuals - and even be "about"
them
(as required by Durant) in that the context provides additional
information,
it's not part of a structured set and therefore not a "relevant filing
system". (A digital photo might be different, of course, although I've
never seen any guidance as to whether a digital camera is "equipment
operating automatically in response to instructions given for the
purpose",
or whether the photos only become data when they are copied to a
computer.)
If it's not personal data, then the DPA doesn't apply. Unless the
organisations involved are public authorities, then the HRA doesn't
directly
apply. There may be a common law duty of confidentiality, but I'm not a
lawyer, so I don't know.
Given that these people were at an event, and therefore in the presence
of a
large number of witnesses, the fact that their presence was documented
by a
photo is pretty much immaterial. Anyone who was there could have
shopped
them verbally.
The question is, though, whether any action taken by the employer would
be
fair, and for that you need the HR discussion list, not the DP one.
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
I hereby require any recipient of this message not to use my personal
data for direct marketing purposes.
----- Original Message -----
From: "Peter Burgess" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, December 01, 2006 9:52 AM
Subject: Photographs and DPA/Human Rights
Can anyone help me to resolve this issue?
A photograph is taken with the informal consent of the person
photographed at a social event (ie. they line up smiling etc). The event
is neither on their employer's premises nor in their employer's time. It
is not intrusive. The photo is then passed to the employer of the person
photographed who wishes to use it in the context of a disciplinary. The
person photographed objects to this use of the photograph.
Are they protected in this situation under the DPA, the Human Rights
Act, or neither? I have my own view but would welcome those of others.
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