The Information Commissioner’s Office (ICO) has launched a consultation on its new draft CCTV Code of Practice. This draft code sets out advice on good practice for organisations that operate CCTV cameras and other devices which record images of individuals. It is intended to assist those businesses in complying with the Data Protection Act 1998 (DPA) in their use of CCTV.
In appendix 3, it includes specific guidance on the use of CCTV in the workplace and in monitoring employees.
Q Why has the new draft code been issued?
A The ICO recognises that the current code, published in 2000, needs updating given recent changes in technology and the law. No doubt it is also conscious of the recent negative press attention surrounding the use of CCTV which has led to concerns over our “surveillance society”.
The UK has more public and private CCTV systems per person than anywhere else in the world. This, coupled with the recent finding that 90% of these cameras may be failing to comply with the law (as reported by the national advisory body for the CCTV industry, Camera Watch), has caused understandable alarm.
Q How can we use CCTV correctly under the new code?
A The code encourages every business to go through a structured decision-making process – a so-called ‘impact assessment’ – to consider whether each proposed use of CCTV is justified, and how it will be operated in practice. In particular, this assessment should consider whether there are any alternatives to the use of CCTV that would still achieve the business’s aims. The use and storage of CCTV images must be adequate for the purpose for which a business or organisation is collecting them.
If CCTV is used solely to prevent and detect crime by members of the public, then as long as the guidance in the code is followed, this should be unlikely to raise issues under the DPA. The draft code includes a helpful checklist in this regard. More problematic is the use of CCTV in the workplace, particularly where it is used to monitor employees’ performance or conduct as opposed to crime prevention.
Q Are there any privacy issues we need to be mindful of?
A Yes. CCTV invades an individual’s privacy, and the draft code is clear that its use should, therefore, be “proportionate and not intrusive”. This means that employees should, as far as possible, be informed that CCTV is being used in a particular area, and what the footage will be used for. If it is intended for crime prevention, then it should not be used for any other purposes, such as a disciplinary, unless the employee’s conduct is such that an employer could not reasonably ignore it. Covert monitoring – ie, without the employee’s knowledge – should only be undertaken in exceptional circumstances – for example, as part of an investigation into serious criminal activity.
The ICO’s Employment Practices Code also provides guidance on monitoring employees.
Q Where can we install CCTV cameras?
A It is essential to choose camera equipment and locations that achieve the purposes for which you are using CCTV. You must also make sure the cameras are situated to ensure that images captured are of the appropriate quality.
The draft code states specifically that CCTV cameras should not be installed in private areas in the workplace, such as toilets and private offices, except in exceptional circumstances where serious crime is suspected and the employer intends to involve the police in investigations.
Q I have strong views about the implications of this new code – what should I do?
A The ICO has launched a consultation along with the draft code. A form for submitting comments is available from the ICO website (see below), and the closing date is 31 October 2007. Once these comments have been assessed, a revised code will be issued.
Q What is the overall message for employers?
A The overall message is: think before you use CCTV. Consider whether it is really necessary for your particular business needs. You should also consult with your in-house legal team or external lawyers to ensure compliance with the existing code, as well as the new code once it has been issued.
by Adam Johnson, employment Group, and Cate Haywood, commercial group, Addleshaw Goddard