Keeping an Eye on Things
With every late night premises now required to have CCTV fitted under the Licensing Conditions (Late Opening) (Scotland) Regulation 2007, Tods Murray argues that CCTV could actually be seen by some as illegal.
A couple of people in the trade have asked about the legality of CCTV in pubs recently. There has been an interesting statement from the Information Commissioner (IC) in relation to the use of CCTV in pubs which no doubt sparked their queries. On 16 March, an IC spokesman said: "Hardwiring surveillance into UK pubs raises serious privacy concerns... installing surveillance in a particular pub to combat specific problems of rowdiness and bad behaviour may be lawful, but hardwiring in blanket measures across entire areas and including pubs where there has been no history of criminal activity is likely to breach data protection requirements."
This comment was made in response to the English Policing and Crime Bill, in which it is proposed that a mandatory condition of the English premises licences should be the enforced installation of CCTV. Those of us dealing in the late night trade north of the border will realise that this proposed new English condition already has a "kilted" equivalent north of the border – under the Licensing Conditions (Late Opening) (Scotland) Regulations 2007, every new premises licence granted in Scotland which has operating hours after 1 am (and meets certain other tests; such as having a capacity of at least 250) now has a mandatory "late night" condition in the following terms: "A CCTV system must be installed on the premises to the satisfaction of the appropriate chief constable and must be kept in good working order."
Now just let that sink in for a minute. If what the Information Commissioner is saying is right, then a mandatory CCTV condition for late night premises in Scotland could well be in breach of the Data Protection Act 1998. The Information Commissioner's Code of Practice for CCTV advises against glibly installing CCTV unless a full impact assessment has been carried out; and states: "the fact it is possible, affordable or has public support should not be the primary motivating factor." The key thing here is that there is a balance to be struck between the use of images and the invasion of privacy (remember, for example, Google's recent back-down over its "Streetview" facility).
We’re not entirely convinced, however, that this legal doubt has force. The 1998 Act is based on several "protection principles" which are found in Schedule 1 to the Act. The rules regarding the protection principles are expansive and beyond replication here; but include provisions that "personal data" (which includes images captured by CCTV) shall be processed "fairly and lawfully"; and can be obtained only for "one or more specified and lawful purposes." The Act also states that whether the images are processed fairly and lawfully includes where the "processing is necessary for compliance with any legal obligation to which the data controller is subject." In our view, this provision can easily be interpreted to include the legal obligation to provide CCTV on late night premises as a mandatory late night condition. In researching the point, we contacted the Assistant Information Commissioner for Scotland who agreed with this interpretation.
It should also be noted that the quote at the top of this article is in relation to a blanket approach taken in Islington London – our mandatory late night conditions are much more focused, and certain tests have to be met before the CCTV condition is applicable.
Moving aside from this debate, those who have installed CCTV already must ask themselves if they have done so "to the satisfaction of the police". If you are such an operator, have you invited the police to your premises to show them your facilities? If not, do so now. The police will be appreciative that you are showing interest and impetus. Whether or not they have the time or resources to check every CCTV facility between now and 1 September is another matter.
Finally, CCTV operators should be aware that, aside from licensing concerns, you also have general duties under the 1998 Act as to how the video feed is processed and obtained. The rules are laid down in the 2008 CCTV Code of Practice which can be downloaded from the Information Commissioner's website: http://www.ico.gov.uk/. An example of the rules you need to adhere to is signage: ensure you have adequate signage in the premises to confirm that CCTV is in operation.
What happens if a customer demands a copy of footage of an incident in which he is involved? Individuals do have the right to request this, which must be provided within 40 days of asking and you may charge a fee of up to £10. You may also be asked for copies of the recording by the police; who certainly have the right to access it for crime prevention and enforcement reasons. Note that Licensing Standards Officers have a power under the new Act to request sight of information as they may reasonably require.
"Information" is not defined in the Act but it is suggested that the chances are this may include digital information including CCTV footage.
For further information, contact a member of our Hospitality and Leisure Team