The information Commissioner has just posted some guidance on photography in schools on his website. Deirdre Sharp -----Original Message----- From: The UK Records Management mailing list [mailto:[log in to unmask]]On Behalf Of Ian Welton Sent: 02 December 2004 13:59 To: [log in to unmask] Subject: Re: Data Protection & Camera Phones Eldin Rammell on 02 December 2004 at 13:01 said:- > I'm sure there must be some legislation to protect against this > but I'm not so sure the Data Protection Act (DPA) can help here. Other than investigatory or survellience legislation I do not believe there is, and it possibly is not. > The DPA covers information which is "processed by means of > equipment operating automatically", "recorded with the intention > that it should be processed by means of such equipment", >" recorded as part of a relevant filing system" or "forms part of > an accessible record". An "accessible record" means (a) a health > record, (b) an educational record or (c) an accessible public > record as defined by Schedule 12. Since the photographs are not > health or educational records, let's look at Schedule 12. This > states that an "accessible public record" is any record which is > kept by a "specified authority" (these are primarily local > authorities). The photographs are not being kept by such an > authority so are not "accessible public records". Therefore, it > would appear that the photographs posted onto the websites do > not fall within the definition of "data" as defined within the > Act. Caveat: I'm not an expert on the DPA so if someone else > knows better, please do correct my conclusions! Those quotes only cover part of the definitions which identify what is captured by personal data intended for processing within the DPA1998. To paraphrase a verbal statement made by the previous Data Protection Commissioner - If you were sitting in a hot bath, thinking about another living individual, you would be within the definitions for processing personal data under the DPA1998, and whilst the act is not intended to be brought to bear on such processing, the definitions are wide enough to do so. > I think you might be better off referring to Article 8 of the > European Convention of Human Rights which confers a right to > personal privacy. There may well be other legislation that > speaks specifically to this issue and, importantly, is easier to > enforce!" The right to privacy conferred by the EUCHR itself has limitations. If some of the relevant EUCHR case law is reveiwed many of the same difficulties will be identified as illuminated by the EU data protection directive and the DPA1998 (which attempts to clarify the implementation of EUCHR article 8 issues). Consequently the EUCHR guidance and principles are not necessarily as simple to directly apply to given situations. They are also far more expensive to progress in law. > I would be interested to hear viewpoints from individuals more > experienced with the DPA or with other legislation that may be > more pertinent here. Those views and perspectives would be obtained by submitting the question to the data-protection maillist. For instance, was there an establishment policy identifying cameras may be used in certain areas and for certain purposes, and was that policy known. Did the data subject give permission for the photograph(s) to be taken and if so for what purpose. There are many variations on the circumstances surrounding the taking of photographs or visual images which would directly affect the legitimacy of their obtaining and subsequent use. Ian W -----Original Message----- From: The UK Records Management mailing list [mailto:[log in to unmask]] On Behalf Of Eldin Rammell Sent: 02 December 2004 13:01 To: [log in to unmask] Subject: Re: Data Protection & Camera Phones I also provided the following response directly to Laura: "Laura, I'm sure there must be some legislation to protect against this but I'm not so sure the Data Protection Act (DPA) can help here. The DPA covers information which is "processed by means of equipment operating automatically", "recorded with the intention that it should be processed by means of such equipment", "recorded as part of a relevant filing system" or "forms part of an accessible record". An "accessible record" means (a) a health record, (b) an educational record or (c) an accessible public record as defined by Schedule 12. Since the photographs are not health or educational records, let's look at Schedule 12. This states that an "accessible public record" is any record which is kept by a "specified authority" (these are primarily local authorities). The photographs are not being kept by such an authority so are not "accessible public records". Therefore, it would appear that the photographs posted onto the websites do not fall within the definition of "data" as defined within the Act. Caveat: I'm not an expert on the DPA so if someone else knows better, please do correct my conclusions! I think you might be better off referring to Article 8 of the European Convention of Human Rights which confers a right to personal privacy. There may well be other legislation that speaks specifically to this issue and, importantly, is easier to enforce!" I would be interested to hear viewpoints from individuals more experienced with the DPA or with other legislation that may be more pertinent here. Regards, Eldin. Rammell Consulting Organisational Effectiveness through Records & Information Management Mobile: 07940 859721 Tel: 01304 381691 Fax: 0870 762 3115 Email: [log in to unmask] http://www.rammell.com <http://www.rammell.com/> _____ From: The UK Records Management mailing list [mailto:[log in to unmask]] On Behalf Of Ian Welton Sent: 02 December 2004 12:27 To: [log in to unmask] Subject: Re: Data Protection & Camera Phones Russell Laura on 01 December 2004 at 16:25 asked:- > I would be grateful for any input regarding the following. We have had some problems > recently with school children taking photographs of other children and posting these > images onto websites, often at great distress to the photographed child. The local > Education and Welfare Officer is subsequently looking to compose a letter to parents > aimed at banning the use of camera telephones in school and acting as justification for > their confiscation, to add weight to this she wanted to include a statement regarding > Data Protection - thus my involvement. > I would be grateful to hear from anyone else who has experienced similar issues. The DPA 1998 section 36 provides an exemption for personal, family, or household affairs. The purpose(reason) the pictures were originally taken and the purpose(reason) for any subsequent publishing on the WWW will both affect if that exemption may be claimed for either action. It would be worth speaking to the education or council DP officer as questions of personal data content may also be relevant. A fuller more comprehensive view would available from the [log in to unmask] list. Ian W -----Original Message----- From: The UK Records Management mailing list [mailto:[log in to unmask]] On Behalf Of Russell Laura Sent: 01 December 2004 16:25 To: [log in to unmask] Subject: FW: Data Protection & Camera Phones Hello List, I would be grateful for any input regarding the following. We have had some problems recently with school children taking photographs of other children and posting these images onto websites, often at great distress to the photographed child. The local Education and Welfare Officer is subsequently looking to compose a letter to parents aimed at banning the use of camera telephones in school and acting as justification for their confiscation, to add weight to this she wanted to include a statement regarding Data Protection - thus my involvement. I would be grateful to hear from anyone else who has experienced similar issues. Please reply off list. Many thanks. Laura Laura Russell Peterborough City Council Records Manager [log in to unmask] *** Private And Confidential Notice *** The information contained in this E-MAIL is intended for the named recipients only. It may contain privileged and confidential information and if you are not the intended recipient, you must not copy, distribute or take any action or reliance on it. If you have received this E-MAIL in error, please notify the sender immediately by using the E-MAIL address or on +44 (0) 1733 452411 The information contained in this email is intended only for the person or organization to which it is addressed. If you have received it by mistake, please disregard and notify the sender immediately. Unauthorized disclosure or use of such information may be a breach of legislation or confidentiality and may be legally privileged. Emails sent from and received by Members and employees of Norfolk County Council may be monitored. 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