Roger J Bescoby of the Brownsword Group writes:
Brownsword Group is often engaged to undertake covert surveillance on behalf of clients, including public bodies and insurance companies, where, for example, there are allegations of insurance fraud or spurious personal injury claims. All surveillance is done in compliance with relevant laws and codes of practice including the Data Protection Act 1998.
In the last two weeks we have been asked to clarify two procedural points in relation to the submission of video surveillance evidence. In both matters we were fully confident of our position, but in order to confirm beyond doubt, we have received excellent and swift support from the Information Commissioner’s Office (ICO). We would like to share the events with you:
TO PIXELATE OR NOT TO PIXELATE?
We were asked to comment as to the necessity of pixelating the faces of ‘others’ (third parties) when submitting a covert video surveillance report. Our client was of the opinion that this may indeed be a requirement under the Data Protection Act (DPA).
We do not routinely pixelate the faces of others captured on film, irrespective of them being adults or minors, believing there is no such requirement. (The filming of minors and ‘others’ is avoided at all times, where logistically possible, to minimise any collateral intrusion. This is a key element in our operatives’ training regime.)
Following direct consultation, the ICO confirmed to us that there is no requirement under DPA to pixelate out the faces of others in Civil Cases such as personal injury claims. The only time the DPA requires pixelation is when providing film data under a Subject Access Request (SAR).
The ICO helpfully went further, saying that pixelation could be seen or construed as ‘tampering’ with the evidence upon which all parties are to carry out an evidential assessment. It could also deny the data subject the opportunity to identify potential witnesses which may assist their case.
Pixelation is a laborious process that adds time and expense to the production of evidence. We think any such requests should be strenuously refuted, quoting the ICO’s clear opinion above. (see also the ICO’s CCTV Code of Practice)
FILMING OF MINORS?
One of our surveillance films was recently used in evidence in an Employment Tribunal. The circumstances were that an employee, off sick with a severe back condition, was believed to be ‘malingering’. Surveillance evidence strongly suggested this was the case; at one stage during the surveillance the subject was observed to freely bend down to pick up his infant child and secure him in a car seat, involving continued bending and twisting etc.
The employee instructed a Trade Union lawyer to represent him at Tribunal, during which the extraordinary claim was made that ‘filming of children is illegal’.
Again we were fully confident that our processing here was justified, fair and relevant. The Tribunal (who you would have thought should know better) however required confirmation on the point. We made immediate and urgent contact with the ICO requesting a clarification. By return of email the ICO confirmed that the DPA 1998 does not prohibit the processing of personal data relating to children as such. What it does is set out is how personal data should be processed, i.e. fairly and lawfully. Furthermore the ICO confirmed the Act would not prohibit filming of a child if it were proportionate in the circumstances and was of such evidential worth that the omission of the images would be prejudicial to the case in hand.
There is no doubt that a new air of sensitivity exists surrounding the filming of minors. Brownsword Group have strict policies and procedures in place that ensure we avoid the capturing of children on film wherever logistically possible. The ‘Savile /and others’ enquiry has understandably played its part in this, but it is important to be alert to spurious arguments now being raised, perhaps with a scurrilous intent to muddy the waters?
Collateral Intrusion is recognised, fully understood and accepted by the ICO, providing there is evidence that the surveillance operative has, overall, demonstrated the due discrimination and proportionality that the DPA requires.
THE ICO AND COVERT SURVEILLANCE GENERALLY
We have had several extremely useful meetings with the ICO recently, finding them very helpful and indeed supportive of some exciting initiatives we have put forward.
Be in no doubt, the ICO fully understand the necessity and the vital role covert surveillance plays in the prevention and validation of insurance fraud. The DPA still usefully provides the same ‘Legitimate Interest’ exemptions that have existed since 1998. All the ICO reasonably ask is that surveillance is undertaken fairly, justifiably and proportionately.
We know exactly how the ICO like things to be – follow those rules and surveillance is there, ready and waiting to be deployed just as it always has been – to protect honest policyholders.
Please get in touch if you require further information on any of the above.
Roger J Bescoby MABI is Director of Strategic Development at Brownsword Group (Visit www.brownsword.com & www.talk-safe.co.uk)
Act Now is running a series of webinars on aspects of surveillance law including the CCTV Code and an update on RIPA. Details here: http://www.actnow.org.uk/content/93
Hi Roger – interesting stuff, and, like you, I’m astounded the Tribunal needed to take evidence on the legality/admissibility of video recording of a child. I think what this highlights is that the legality/fairness of processing can depend so much on the context for which it is processed: recordings submitted as evidence in legal proceedings are very different to, for instance, recordings uploaded to Youtube for entertainment. The former has to comply with rules of evidence, which can be very different to “normal” fairness under DPA.