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.T
o
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 takingo
f
photographs or visual images which would directly affect the legitimacy
of
their obtaining and subsequent use.
Ian W
