The ruling presents an new development in the intersection between the public and private in the digital age. If someone has an extensive front garden, they can use the CCTV to cover it. However, if they only have their doorstep, and that opens directly on to the public pavement (is the pavement public?) then they cannot rely on the s.36 exemption as it focuses on the "public" domain.
What is the public domain in relationship to the household? Is the public domain at the edge of my propertyline? If so, how far does it extend above me? Only to the top of my house? But if I am in my front garden, is the airspace around my property private or public? How far up does my private airspace go? (roughly 500-1000ft above rooftop) How far beneath the ground does my household extend. (You heard it here first, the next big thing is the underground cam/sensor (mole-vision)) Here is how land ownership (including airspace) is defined in UK law. http://www.inbrief.co.uk/land-law/land-ownership.htm
What we may forget, here in the UK, is that a man's home is his castle. To defend your castle, you have to monitor the space around it to some extent. You put up flood lights, you put up motion sensors. The defense of the household is a purely household purpose. If the household is attacked (as the police cannot be omnipresent), the householder has to be able to defend themselves. Surely, one could make the argument that to defend the household, a purely household function unless one is invading neighbors, CCTV in the surrounding area is for a purely household purpose. However, to the extent the household is limited (the focus of the judgement seemed to elide this issue as it may have a different historical construct of the personal household as Europe does not recognize this concept of personal sovereignty in property in the way that English common law has see http://www.phrases.org.uk/meanings/an-englishmans-home-is-his-castle.html for an interesting counter argument (squatters with homes inside someone's castle :) see l http://www.telegraph.co.uk/property/10158484/Englishmans-home-no-longer-his-castle-says-senior-judge.html I would suggest that the EU, through its Human Rights Law, which is not based on common law, has a different concept of the individual and the state so that such a relationship is less viable. ( a topic for a paper not a blog post) This in turn gets us back to the question of the relationship of the public domain a related problem.
If the public domain begins as soon as you go out your front door, how does an individual retain their personal space while they participate, travel through, the public domain? As as been mentioned previously, there were historical times (and there are current places) where people must avert their gaze as the great and good pass. Usually, this is in private settings ie a club or a resort or some restricted space, but is this too far to suggest the person's gaze in the public domain can be limited. Perhaps, this is pushing the idea too far, but it is something to consider.
In the decision the key passages to consider are paragraphs 27-30. There the court wants to have its cake and eat it too. It wants to say that in the public domain, the people walking past, are private citizens but they are in the public domain. The situation is curious. The private person in their home is acting publicly but the person in the public domain is acting privately. How private are we in the public domain? Please note that this is different from the state seeking to identify someone in the public domain as they retain a different fundamental relationship (as a government) to the individual than any individual to another individual. The problem is that the individual as data controller does not become like a government just by being a data controller, they only become like a government when they act like one. (This is to avoid an individual taking on government like powers and claiming they are simply a private individual (albeit with resources to rival the state). The fluid nature of public and private in those paragraphs creates a future problem for the court.
On the s.17 issues, how do I explain that I do not have to notify as I ride along with my helmet cam because honestly I am only going to use the images for insurance purposes. I think people will need to notify first and then demonstrate that what they recorded is only being used for methods that do not infringe the rights and freedoms of others. I am not sure how people assure others, before they know they are being recorded, that they are only using the camera for purposes that will not infringe their rights and freedoms. However, this only gets us out of the £35 fee (if it holds up (pace what Phil was saying).
Now that s.36 is removed for the CCTV that enters the public domain, the people using it become de facto data controllers who need to comply with all aspects of the Act (even if they might be able to get out of notification). They still have to act under all the requirements and all the principles will apply. They will have to deal with SARs, they will have to deal with Article 10-14 issues. Soon, no one will want to have CCTV.
I also doubt the court will accept that argument from the data controller (aka CCTV owner) that they are not taking any images. It will be for the data controller, not the data subject, to demonstrate that they have no footage. If they receive a SAR, then they need to have the systems and processes in place to demonstrate a negative sooner or later.
I think the court made a poor judgement without considering the wider implications of public and private in deciding on CCTV as they failed to consider the individual within the wider context and moreover the idea of a household and what it means in that wider context of the public space.
We shall see how this plays out if any Article 8 challenges come as people cannot defend their households and thus argue that their Article 8 rights are infringed. It is a long shot to make this article to reassert s.36, but the decision on s.36 has wider implications than just DPA or processing CCTV.
On a related note, what are the consequences then for recording telephone calls or meetings, especially those in the public domain ie you go to meet the local authority? Do these fall afoul of the public/private fuzziness of paragraphs 27-30 or does this fall into a "relationship" in which the parties know each other so there is no "privacy"?
Would welcome your thoughts on the issue.
Best,
Lawrence
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