By Madeleine Colvin
Director of Legal Policy, JUSTICE
The Human Rights Act 1998 incorporates the European Convention on Human Rights into our domestic laws and is the nearest thing to a Bill of Rights that this country has ever had. My task in discussing the implications of this Act on CCTV systems is threefold:
First, to give a general outline of the Human Rights Act and to describe how it is intended to operate and against whom.
Second, to look at Article 8 of the European Convention which incorporates a right of privacy into UK law.
And, third, to identify those aspects of CCTV which may be potentially vulnerable to a challenge under the new Act.
Human Rights Act
The Human Rights Act is the tool that incorporated the European Convention on Human Rights into our laws. Its purpose, as the Labour Party said in its manifesto, is to ‘bring rights home’. This means that the Convention rights may be relied upon and argued in cases coming before our courts which has not been possible up to now. Those who have wished to rely on enforcing their Convention rights against the UK government have had to resort to the lengthy, and sometimes costly, route of taking a case before the European Court of Human Rights in Strasbourg. The UK is, in fact, one of the last countries to incorporate; it has taken us 48 years to do so. This is perhaps ironical considering that we were the Convention’s principal drafters and one of the founding member states to adopt it in 1950.
It is difficult to overstate the importance of this move. An eminent law professor, Professor Wade, has recently described the Human Rights Act as ‘one of our greatest constitutional milestones’ that will introduce ‘a new legal culture of fundamental rights and freedoms’. Unfortunately, I do not have the time today to go into the mechanics of how incorporation is being effected, particularly in relation to he delicate balance struck between parliament’s and the courts’ role in having the final say on legislation which may breach human rights. I am going to restrict myself to highlighting some key features that have particular relevance to CCTV.
The first is the difference between absolute and qualified rights. The rights protected by the various articles of the European convention fall, broadly into two categories. First, those which are absolute – the right to life, the right to freedom from torture or inhuman or degrading treatment or punishment, the right to marry and found al family, for example. These are rights that are unqualified. On the other hand, and more relevant to today’s’ discussion, the majority of rights fall into the category of qualified rights and Article 8 on privacy is one of them. This means that the right may be interfered with or restricted by the state provided that this is shown to be necessary for a specified purpose identified under the Convention. Although the specified purposes differ between the various rights protected, there are a number of common purposes that apply, for example, to the right to privacy, the right to freedom of expression and the right to freedom of association. These rights may be restricted if this is necessary either in the interests of national security, public safety, for the protection of health or morals or for the prevention of disorder or crime. I will say more about these restrictions in discussing the privacy rights of Article 8.
Second, the Act makes it unlawful for a public authority to act in a way that is incompatible with a Convention right unless legislation specifically requires it to do so. It is important to note that an act includes a failure to act- it thus places public authorities under both negative and positive obligations. This will mean that it will not be enough for public authorities to refrain from violating the rights of individuals. They may have to take positive steps to protect rights from violation by others. For example, if a family living on a council estate is unable to enjoy an effective family life and peaceful occupation of its home because of racial harassment by neighbours, a local authority may be in breach of the Convention rights on privacy and non-discrimination if it fails to act.
Third, it is critical then to understand what is considered to be a public authority. As identified during the parliamentary debates, there are two types of public authorities – those that all f would recognise as being plainly so, such as central and local government and the police. They may be called ‘pure public authorities’. However it also includes a second category of bodies which, as part of their overall role, carry out functions of a public nature; some examples are the Legal Aid Board, Railtrack and the Press Complaints Commission This will undoubtedly throw up a number of borderline cases and involve protracted arguments about the nature of the role being undertaken by a particular organisation. For example, there are issues around CCTV itself. Where the systems owned and run by the police, for instance, there is little doubt that they are in the control of a public authority and therefore subject to the new Act. On the other hand, where the system is owned and operated by, say a trade association it is not so clear. An initial response would be to say that this is a private body that only undertakes private functions for itself. However this could be questioned. It could be argued that where a trade association is operating a system in a public place with public money and for crime prevention purposes, it is in fact carrying out a public function. What the courts will make of this kind of problem remains to be seen but there may be good practice lessons to be drawn from this, namely that all those running CCTV systems in public places should seek to comply with Article 8 requirements.
Fourth, the clear primary purpose of the Act is therefore to place a duty on pubic authorities as state players and not on private individuals or bodies. Having said that, I have a note of caution for the private sector. There is already much legal argument as to the extent to which the Act will, in practice, apply to relationships in the private sector. In other words, how far will private individuals and companies be able to enforce their human rights against other private individuals or companies? Will an employee be able to rely on it in an action against a private employer for unfair dismissal? Will private investigators that carry out surveillance activities be liable to challenge for unlawful conduct breaching Article 8? Will private landlords be able to discriminate against tenants on grounds of their religion? There is a strong legal viewpoint that, although initially the courts will be reluctant to include private law actions within the remit of the Act, that this will become inevitable in the longer term. In the end, these rights are going to permeate through al areas of our law.
Privacy rights under Article 8
We generally talk about the right to privacy being guaranteed by Article 8. This Article says that everyone has the right to respect for his private and family life, his home and his correspondence. The cases show that it has been interpreted widely and applied to a broad range of circumstances. It has, for instance, been used to cover telephone tapping and use of bugging devices; it has been applied to prisoners and their right send and receive private communications; it covers sexual life, so that a prohibition on homosexual acts in private between consenting adult partners has been held to be an unjustified interference with the right to privacy. More recently, it has been successfully argued in several environmental cases including a case where a chemical factory created a health hazard to the local populous.
Although CCTV itself has yet to be the subject of a case coming before the European Court, it is generally accepted that it can give rise to privacy issues in two particular ways. First, through its surveillance role land second through its information-gathering role. In its surveillance role, CCTV will usually be operated overtly with the cameras being sited in public places or in places where the public have free access, such as a shopping mall. The European Court has made it clear that people are entitled to rely upon a degree of expectation of privacy even in public places, although this is clearly less than private.
In its information-gathering role, CCTV has direct implications for what is referred to as ‘informational privacy rights’. This is largely covered by data protection laws.
The Article 8 tests
Once it is established then that technology such as CCTV has the potential to interfere with privacy rights, Article 8 (as a qualified right) requires that three tests have to be applied if the interference is to be lawful.
First, the interference must be undertaken ‘in accordance with the law’. In other words, there must be a statutory legal basis for allowing the state to interfere in the particular way alleged; it is not good enough merely to follow a voluntary code of practice or internal guidelines. The best example of this concerns telephone tapping. Until the mid-1980’s telephone tapping by the police was governed by internal guidelines and police standing orders. The European Court in the 1984 Malone case ruled that this was not good enough: any conduct by the state which is potentially intrusive has to be the subject of controls in an Act of Parliament and this law must be clear and easily accessible to ordinary people. As a result the 1985 Interception of Communications Act was introduced.
Second, the aim of the interference must fall within one of the exceptions to Article 8 f it is to be lawful. These are the exceptions that allow the right of privacy to be restricted. I have already mentioned them before; essentially, these aims are either to protect national security, public safety, public health and morals, the rights of others or prevent public disorder or crime. This list is intended to be exhaustive; states cannot add restrictions that are not listed in Article 8.
The third test is that the restriction fulfils a pressing social need and is proportionate in how it responds to that need. This means that it cannot just be asserted that the interference is necessary to protect public safety, for example; there has to be concrete evidence that there is a genuine threat to public safety and this is an appropriate way of responding.
How then does CCTV fare when these tests are applied? At this point, I am only going to outline two broad areas where CCTV may be vulnerable to a legal challenge as failing the Article 8 tests:
First, and foremost, is the fact that the setting up of CCTV systems is not subject to any statutory regulations. Many argue that a correct interpretation of Article 8 requires that the state has a positive obligation to regulate all CCTV systems both public and private because of their potential to interfere with privacy rights. A number of European countries have recently introduced such regulations. In Denmark, for instance, all CCTV systems are subject to a licence being granted which must take account of people’s right to privacy. Also, conditions may be attached such as where the camera is placed, how it is monitored and whether, for example, it can ever be combined with an auditory facility. A special licence is required if video recordings are to be retained particularly for crime purposes. The Science and Technology committee of the House of Lords strongly supported the need for a regulatory scheme for CCTV in a recent report earlier this year
Second, it is arguable that current data protection law (including the new 1989 Act when it comes into force next year) may be unable to provide sufficient ‘Article 8 safeguards’ to cover some of the more advanced technologies that can be used in combination with CCTV.
These technological developments are likely to introduce new and more intrusive uses for CCTV material. What I am specifically referring to is when CCTV is used, not just as a tool to prevent crime, but instead to detect it. An example of this is when CCTV footage is combined with facial recognition’s systems to identify people. This is already in use in other situations, such as football grounds. Perhaps, as importantly though, are the moves to create near-national pictorial databases by way of the new driver’s licence (which has an attached photograph) and the passport photograph. These will provide huge databases against which CCTV images can be compared. This suggests that high-street CCTV system potentially offer unique surveillance opportunities. Although the new Data Protection Act is designed to cover the processing of CCTV image data, it is not specifically designed to deal with sophisticated data-matching processes carried out on a large scale.
To conclude, therefore, with two points. First it seems clear the Human Rights Act, by incorporating a right to privacy into UK domestic law, does have potential implications for CCTV systems especially those run by public authorities. And, second, that in the longer term incorporation of Article 8 will mean that the government is obliged to introduce specific statutory regulations and controls over CCTV.
(39) By , 12 Oct 2007, 15:19