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Privacy and Mobile Phone Cameras
We'd like to thank Annabel Fordham from the Office of the Privacy Commissioner for contributing this piece on how New Zealand's privacy legislation relates to the issue of surreptitiously photographing someone (as with a mobile phone camera) and placing those images on the Net. Mobile Phone Cameras Mobile phones are getting smaller, smarter and now come with cameras. The portability of mobile phones means the addition of a camera is an ingenious step towards an integrated communication tool. But operators of gyms and swimming pools overseas and in New Zealand fear instances where opportunistic patrons will use the new technology to surreptitiously snap others undressing. Worse still, the photos can easily end up on the Internet. New Zealand-based operators have already started to take proactive measures by banning the use of photo-capable mobile phones from changing rooms. All Wellington City Council-run swimming pools have posted signs banning the phones, saying it is a preventative measure. Gyms Les Mills and Club Physical were reported to be considering how best to deal with the privacy risks the phones pose for their members. This is an emerging area that has not been the subject of previous complaints to the Privacy Commissioner. But although the technology itself is new, the issues raised by surreptitious filming or photographing are not. What are the privacy parameters? The Privacy Act only applies to “personal information”. This is defined as information about an identifiable individual. So, the requirements of the Privacy Act would not apply where someone is photographing or filming a person in a way that means they are not identifiable. It is unlikely to be a collection of “personal information” under the Privacy Act. Moreover, nothing in the privacy principles applies to personal information which is collected or held by an individual “solely or principally for the purposes of, or in connection with, that individual’s personal, family, or household affairs” (section 56). What if the person is at work? The effect of section 56 is that a commercial photographer taking photos of a client in a studio would be bound by the privacy principles, but a parent taking photographs of their child at a school sports day would not. The personal trainer photographing others at the gym would be covered by the privacy principles, but the gym member doing the same would not be. For instance, the Privacy Commissioner considered one case where a contractor installing television monitors for a musical production in a theatre concealed a video camera in the women’s dressing room and recorded the women getting changed (case note 18302 [2001] NZPrivCmr 8). He claimed he made the videos for his own personal use and that he had not shown them to anyone else. Of the 12 information privacy principles in the Privacy Act 1993, principles 1, 3 and 4 are particularly relevant to surreptitious filming or photographing:
The Commissioner found that the surreptitious videotaping had breached both principles 1 and 3. Conceivably, a complaint which raised a similar situation, but involving a still image instead of a videotape, would also breach the Privacy Act. The Privacy Commissioner concluded that the women had also suffered humiliation, loss of dignity and injury to their feelings from the secret filming and came to the conclusion that the respondent had caused an interference with the women’s privacy. The contractor reached a financial settlement with most of the women and gave a written assurance that it would not happen again. Since that time, he has been convicted of making an objectionable publication under the Films, Videos, and Publications Classification Act 1993. There are also legal restrictions upon private investigators filming or taking photographs in the Private Investigators and Security Guards Act 1974, section 52. Lawful surveillance? Sometimes, it can be necessary and lawful for personal information to be collected without alerting others to that fact. Repeated thefts at a workplace might be one example. In the past, the Privacy Commissioner has said that unless there are extraordinary reasons, areas where people would expect complete privacy (such as toilet facilities and washrooms), should not be the subjects of covert filming or video surveillance. He has issued some guiding pointers on the use of covert surveillance in the workplace (call 0800 803 909). What protections are there for the public? Any individual in New Zealand may complain to the Privacy Commissioner if they believe that his or her privacy has been breached. The Privacy Commissioner will try to settle the matter through an informal conciliation process and if that proves unsuccessful may go on to investigate the complaint and form an opinion. In a few instances where the complaint is still not resolved, it may be referred to the Human Rights Review Tribunal for consideration. The Tribunal may award damages for an interference with privacy. For further information see the Office of the Privacy Commissioner’s website: www.privacy.org.nz or ring our enquiries line on 09 302 8655 or 0800 803 909. |
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