Data protection law will affect CCTV use

Closed Circuit Television (CCTV) is increasingly popular in Ireland, from the sophisticated systems operated by the Garda to the more basic cameras that festoon the walls of banks, petrol stations, shops and schools. Denis Kelleher reports.

Old and new CCTV cameras look identical, but the technology used is changing rapidly, America's war on terrorism has given a big impetus to smart CCTV systems that may automatically identify known criminals or suspected terrorists.

The efficiency of CCTV cameras remains uncertain. British studies indicate that improving street lighting has a significantly greater impact on lowering crime rates and smart CCTV systems appear to be virtually useless save where they are used to monitor small populations of known offenders.

The legal environment for CCTV is also changing, The Data Protection (Amendment) Bill 2002 is now before the Dáil. This implements the EU's Data Protection Directive and may subject some CCTV systems to the law of data protection.

This change is a subtle one. It can only be discerned by reading the 1995 directive in combination with the 2002 Bill, but it is real. A camera that simply monitors a washroom in a restaurant without recording may or may not be subject to data protection law, but if a tape is made of an incident in the washroom and kept in a file relating to that incident, that tape probably will be.

Data protection law will apply specific rules to this tape. It will have to have been acquired "fairly and lawfully", which may not be the case where a tape is made of a washroom in which people would expect privacy.

Consequences may flow from unfairness and illegality. The tape may not be admissible as evidence in court and the person whose activities were taped may be able to sue the washroom owner for damages under the existing Data Protection Act 1988.

One failure with the 2002 Bill is that, while it will extend the data protection law to some CCTV systems, it does not make it clear how the owners of those systems may protect themselves. A sensible way of doing this would be to require CCTV operators to display prominently notices to inform the public that such systems are in use, but it is not clear from the Bill that erecting such notices will confer any protection on the operator who erects them.

The implementation of the Data Protection Directive by the 2002 Bill may have a far greater impact in Ireland than in other states, as Irish people will almost certainly avail of the right to sue for damages for breach of data protection rights, which are substantially extended by the Bill.

Solicitor Mr Ciaran O'Mara has developed a thesis that, following the introduction of the Irish European Communities (Data Protection and Privacy in Telecommunications) Regulations 2002, it is illegal for employers to monitor employees' internet or telephone communications as the State failed to avail explicitly of an exemption provided for by the European Union. I agree with him and if the courts do likewise, any employee whose employer is monitoring their communications will have a right to sue for damages in respect of that monitoring. Many employees may seek to do so. • Denis Kelleher is a practising barrister