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DATA-PROTECTION  2004

DATA-PROTECTION 2004

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Subject:

Re: Data Protection & Camera Phones

From:

Ian Welton <[log in to unmask]>

Reply-To:

Ian Welton <[log in to unmask]>

Date:

Thu, 2 Dec 2004 14:54:25 -0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (383 lines)

Paul Ticher on 02 December 2004 at 14:31 said:-

My apologies for accidentally cross-posting.

>
>
> 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.


As with 'processing' all principles start with the interpretation of the
definitions in their application to the circumstances appertaining to the
initial collection.

A puzzle to me with visual images is how to fairly apply the 'opt in' or
'opt out' provisions without prejudice during the collection process.

Ian W

> -----Original Message-----
> From: This list is for those interested in Data Protection
> issues [mailto:[log in to unmask]] On Behalf Of
> Paul Ticher
> Sent: 02 December 2004 14:31
> To: [log in to unmask]
> Subject: Re: Data Protection & Camera Phones
>
>
> 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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