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Expert insight: the Legality of Covert CCTV

NZ Security Magazine, Oct/Nov 2017

Smoke alarm or surveillance? Legal and ethical considerations should be addressed before deploying covert CCTV.Smoke alarm or surveillance? Legal and ethical considerations should be addressed before deploying covert CCTV. 

Covert CCTV is a valuable investigative tool, but there are important ethical and legal issues requiring consideration before deployment. In this multi-part series, security consultant David Horsburgh will examine some of the misconceptions around the use of covert CCTV, showing how statutes and case law identify best practice. The series begins with the Privacy Act 1993.

 

Privacy Issues

In August 2016, the family of an eighty-six-year-old Hamilton rest home resident, concerned that he was being physically abused by a caregiver, installed a covert CCTV camera in his room.  Evidence from the camera identified a caregiver assaulting the resident. The staff member was subsequently convicted of assault.

The Waikato District Health Board stated that the camera breached the privacy rights of rest home workers, and Privacy Commissioner John Edwards stated, “if a rest home or DHB installed covert cameras in a resident’s room that would almost certainly be a breach of the Privacy Act, and depending on what was filmed could also be a criminal offence.” 

These statements are misleading.  Within the Privacy Act 1993 there are twelve information privacy principles that describe the rules governing the acquisition, retention and dissemination of personal information. 

Some key elements of the privacy principles relevant to the use of CCTV include:

  1. There must be a lawful purpose for the collection of personal information.
  2. The collection must be connected with a function or activity of the agency.
  3. CCTV use must be necessary.
  4. The agency collecting the information is required to take steps to ensure the individual concerned is aware that the information is being collected, the purpose of collection and the intended recipients. However, in the field of covert CCTV there is an important exemption to this rule. Under Information Privacy Principle 3(4)(d) it is not necessary for an agency to comply if compliance would prejudice the purposes of collection.
  5. The benefits of covert CCTV to identify persons responsible for unlawful behaviour would be negated if it was necessary to advise all persons that covert cameras were in operation.
  6. Collection of personal information shall not be conducted by unlawful means, such as in breach of Crimes Act 1961 provisions. Unlawful might include trespassing, intimate visual recording, use of listening devices and breaching the Private Investigators Code of Conduct.
  7. Collection shall not be by means that are unfair or intrude to an unreasonable extent upon the personal affairs of the individual concerned.

Office of the Privacy Commissioner (OPC) Case Note 0632 involved secret surveillance of employees in a work changing area in response to complaints of theft. Key elements in that decision included:

  1. The exemptions provided under Principle 3(4)(d) and (e) were relevant to the operation of the camera and it was not necessary to advise staff that CCTV was operating.
  2. The use of the video camera was lawful.
  3. The locker room was not a private space intended for the removal of clothing.

This Case Note is supported by the New Zealand Employment Court decision New Zealand Tramways Union (Wellington Branch v Wellington City Transport t/a Stagecoach New Zealand [2002] 2 ERNZ 435, 452. This case involved the installation of a covert camera in a bus when it was suspected that the bus driver was not accounting for all cash payments from passengers. 

 

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Chief Judge T G Goddard stated at paragraph 61 of the decision that, “The video surveillance of suspected employees is not in itself objectionable. Nor is it particularly novel. There must be so many cases in the books of its occurring that to give examples would be a complete waste of time.”

Inappropriate use of CCT, however, can be a breach of the Privacy Principles.  OPC Case Note 14824, relates to the case of a man who had claimed on an insurance policy covering him for disability. When the man’s house was put up for sale. a private investigator purporting to be a potential purchaser visited the house and while in the house filmed the man.

The recording was subsequently used by the man’s insurance company in an effort to refute his disability claim. The filming was considered to be unfair and an unreasonable intrusion into the man’s personal affairs and therefore a breach of the Privacy Act.

As part of a MSc research project on protecting the elderly in aged-care environments, I conducted an eighteen-month study into the effectiveness of CCTV as a post-event investigative tool. The analysis included sixteen aged care villages involving twenty-one separate covert CCTV operations.  Findings of the project included:

  1. All cases involved multiple thefts from elderly residents, many of whom were being regularly re-victimised.
  2. In each case the informed consent of residents, their families and authorisation from village managers was obtained. The residents supported the use of covert cameras, accepting an intrusion into their privacy so that offenders could be identified.  
  3. The thefts adversely impacted on the relationship between residents and staff. Many residents, both men and women, experienced a loss of trust in the staff caring for them.  In some cases, residents, after being victimised, refused to allow certain caregivers into their rooms.
  4. The thefts adversely impacted on staff morale because most caregivers are committed to providing the best care possible for the residents.
  5. Caregivers generally supported the use of CCTV in work environments.
  6. At one village, overt cameras were trialled in an area where numerous thefts had been reported. A displacement of crime resulted, with a significant reduction of theft in the area under overt surveillance but an increase in theft in non-surveilled areas. In that village, the thief was finally caught using a covert camera in a location away from where overt CCTV cameras had been deployed.
  7. Covert CCTV operational outcomes included the identification and dismissal of 25 caregivers and housekeepers for theft from elderly residents.

In contradiction to the Privacy Commissioner’s sweeping generalisation that covert CCTV in an elderly resident’s retirement village room “would almost certainly be a breach of the Privacy Act”, I argue that a well-planned covert CCTV operation incorporating the necessary permissions from both management and resident is not a breach of the Privacy Act

There are other statutory considerations required, such as sections 216B and 216H of the Crimes Act 1961 (prohibition on use of listening devices and intimate visual recordings), the Private Investigators’ Code of Conduct, the New Zealand Bill of Rights Act 1990 and the tort of intrusion into seclusion (C v Holland [2012]). I will examine these areas of statute and common law in future articles.

 

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