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Subject:

Re: Data Protection & Camera Phones

From:

Paul Ticher <[log in to unmask]>

Reply-To:

Paul Ticher <[log in to unmask]>

Date:

Thu, 2 Dec 2004 14:31:17 -0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (279 lines)

How can thinking about someone in the bath possibly come under the Data
Protection Act?  The Act only applies to information that is *recorded* ...

Oh sorry, this thread isn't discussing the definition of personal data.

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: "Ian Welton" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Thursday, December 02, 2004 1:53 PM
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]




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