Legal questions that apply to CCTV typically come from a range of sources, with little actual legislation targeting CCTV specifically. Rather, the impact of the legal environment on CCTV often needs to be interpreted or inferred. This is done sometimes by users, but more typically through legal advisors, or ultimately in the courts. Given that CCTV is a relatively new technology, this need for interpretation of the law means that the operation of CCTV is in a relatively ambiguous legal area. The ambiguity is reflected by companies or personnel who seek legal advice and may find that legal opinions are often at variance with each other. Indeed, I have come across situations where a company has got a number of opinions until they found the one they liked. Legal departments of companies are grappling with a number of issues that may impact on the companies’ reputation and practice.
The legal environment is shaped by a number of areas that form opinion. These range from the broadest principles within constitutions to the cases at the local court down the road. These areas include:
* Legislation.
* Case law and precedent.
* Policy of the police and justice functions.
* Good practice as defined by associations and institutions.
The dominant legislative areas that influence our conduct of CCTV come from sources such as the Constitution, human rights, treatment of CCTV as information or data with associated implications, specific legislation relating to privacy and monitoring, industry provisions, and at times more local ordinances relating to preservation of buildings or general conduct. Further, CCTV may be indirectly impacted on by other legislation. These legislative provisions provide a relatively strong guide for the conduct of CCTV, but laws are still interpreted and may even need to be reconciled against each other. Legislation therefore needs to be defined and clarified through its application in case law.
Case law provides the test of how the law applies to a user or situation. The generation of precedent plays a major part in how the law is interpreted in the long term. Ultimately the resultant legal environment is only as good as court decisions, and these in turn are only as good as the functioning of the legal system. This case law can even happen beyond the national boundaries – for instance UK CCTV was directly influenced by a European Court on Human Rights’ decision which affected how CCTV video could be used and shown. While non-binding international precedent may be a factor, it is only a part of the consideration a judge may give to making decisions within a national environment. We will find that the decisions we have to live with for the long term are going to be formed by the legal cases we have before our courts for the next couple of years.
Of all the legal aspects relevant to CCTV, laws of evidence are perhaps one of the most clearly laid out. Evidence handling and processing typically goes through a number of steps, no matter what kind of content is involved.
However, digital evidence does raise additional technological questions and in many cases this has not yet being clearly defined. Yet if users themselves are sometimes unsure of the technology issues, can we expect judges to be any clearer. Once again, case law is likely to be affecting how we see and use CCTV as evidence as judges’ decisions define what is acceptable and what is likely to be rejected.
The emphasis the police and justice function place on various aspects of the law may shift beliefs or interpretation of the law. For instance, in the UK recently, the National Policing Improvement Agency put through a different interpretation of the way CCTV operators would have to approve close or covert surveillance of individuals as defined in the Regulation of Investigatory Powers Act. This has caused some consternation among a number of town centre users and has caused a debate over the purpose and nature of the legislation and how it is to be used.
Adherence to principles of good policy and practice can not only safeguard a company in the legal area, it may prevent issues from arising. Courts will often review actions in the light of professional standards or practice. By codifying these within an organisation in the form of a Code of Practice or policy, you can state up front that your practices and standards should meet such professional expectations. Of course, in doing so, you also need to ensure that your operations do in fact meet these, otherwise you lay yourself open even more to accusations of bad conduct.
We look at the law to guide our actions and define what is acceptable or not acceptable. Unfortunately, those involved in CCTV, in various countries, are still going to be finding their way in how their actions are viewed. Sharing experiences in the area and providing mutual support between users are likely to be strong factors in influencing how CCTV video is used and presented in legal proceedings. All users need to be as informed and aware as possible if court decisions are to build a CCTV friendly legal environment.
Dr Craig Donald is a human factors specialist in security and CCTV. He is a director of Leaderware which provides instruments for the selection of CCTV operators, X-ray screeners and other security personnel in major operations around the world. He also runs CCTV Surveillance Skills and Body Language, and Advanced Surveillance Body Language courses for CCTV operators, supervisors and managers internationally, and consults on CCTV management. He can be contacted on +27 (0)11 787 7811 or [email protected]
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