Richard Randles Legal Environment - Unit 5 Page 1 of 7

Are current Data Protection laws robust enough to regulate Britain’s rapid
growth in CCTV surveillance?

This essay will consider whether data protection legislation is sufficiently robust to
deal with Britain’s rapid growth in close-circuit television (CCTV) surveillance. The
essay will start by introducing video surveillance, then examining the data protection
laws that regulate it, criticising the law, before looking at how it could be reformed,
considering counter arguments and finally a conclusion will attempt to close the
discussion.

It is important to understand how close-circuit television impacts on society in

modern Britain: Firstly in the context of its growing prominence; its effectiveness in
dealing with crime; before considering the future technological advances; and finally
the ethical questions that arise from the state of video surveillance in Britain.

Close-circuit television is becoming an increasing part of our daily lives. Britain is

leading the way in CCTV installation, which is earning itself the title of the
“surveillance society” (Ball, K et al, 2006) and establishing itself as the CCTV capital
of the world. A research study, highlighted by the BBC, claims that there are “up to
4.2m CCTV cameras” and that we are caught on camera “300 times a day” (Anon 1,
2006). It would be argued by some, that this type of surveillance offers public safety
and gives law enforcement agencies the necessary tools, with which to prevent crime.

The primary function of close-circuit television is to prevent crime, however its

effectiveness in achieving this being constantly challenged. Recently the Liberal
Democrats’ political party put forward analysis which criticised the effectiveness of
publicly funded CCTV cameras in London (Harris, 2007). In contrast, the MP John
Denham has argued that CCTV plays a part in both deterring and detecting crime,
"Increasingly CCTV plays an important role not just in deterring crime, but in
detecting it" (Anon 3, 2002). One school of thought suggests that video surveillance is
only able stop certain types of crime. A study conducted by the Home Office
supported this, “It was found that CCTV had no effect on violent crimes (from five
studies), but had a significant desirable effect on vehicle crimes (from eight studies)”
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(Welsh and Farrington, 2002 p.42). Regardless of its effectiveness, close-circuit video
technology is a growing technology that British law enforcement intends to utilise.

With advancement in technology, surveillance of all kinds is receiving a sharp

injection of finance and political interest. New British passports are already being
fitted with biometric chips that can hold vital and private information. While the
Government’s proposed I.D. card scheme is intended to be used alongside biometric,
tracking and database technology. Close-circuit television is another area where
technological advances have increased possibilities. Facial recognition technology
that scans and identifies people is already installed in many private sector businesses
and may soon be finding its way into the public domain. In addition to this
development, cameras with speaker systems fitted have been trialled in
Middlesbrough, allowing law enforcement and camera operators to shout orders at
people misbehaving under the camera’s gaze. With the advent of these technologies
increasing the Government’s capability to invade citizen’s privacy, there are many
ethical questions to be answered.

The intensity of surveillance and particularly close-circuit television in Britain has

raised ethical concerns. The Information Commissioner, Richard Thomas, is one high
profile figure who has voiced his concerns explaining, “...unseen, uncontrolled or
excessive surveillance can foster a climate of suspicion and undermine trust” (Anon 4,
2006). It could be argued that the very nature of Britain’s multilayered surveillance
systems breeds suspicion, both for the observer and the observed. While the idea of a
‘nanny state’ seems far away from being a reality, a report predicted that by 2016 it
would actually be realised. It claimed that facial recognition technology and mobile
wireless camera systems would be used to track citizen’s movements (Anon 4, 2006).
Britain’s current and potential future surveillance is particularly invasive of its
population’s privacy. It is for the reason that the laws which govern it must be robust.

Surveillance and its uses, along with its disputed pros and cons, is an aspect of Britain
which is regulated by law. All types of surveillance conducted are considered by law
as data collected on individuals and as such are subject to the stipulations of The Data
Protection Act 1998. While The Data Protection Act is broad and wide reaching, there
are regulations which are more specific to the use of CCTV that will be considered.
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The Data Protection Act 1998, which covers electronic and manual forms of data, has
many key features that must be adhered to, in order to ensure legal control of private
information. Primarily, data must be collected fairly and lawfully; this means that the
subject of the data must be informed of the purpose behind the data collection and the
persons or institute who hold the data. Personal data must be kept accurate and update
with the permission of the subject, while the information must also be adequate,
relevant and not excessive or kept longer than necessary. The data must be processed
within the legal rights of the individual and be processed to a limited purpose. The
information collected must be kept securely and not distributed to countries which
cannot uphold this protection. In addition to all of these stipulations, any persons or
institution intending to gather and hold information on individuals must pay to
register with the Information Commissioner’s Office (ICO). The ICO, an independent
government body with delegated powers under UK law, then has the right to check
and audit the data and collection process that is being engaged in.

As part of the Data Protection Act 1998, there are further stipulations that are specific
to the use of CCTV cameras; these did not come into effect until October 2001. They
affect all cameras that observe a public space. They must be registered with the
Information Commissioner, in the same way that other data handling facilities must
be. Affected CCTV cameras must have a ‘compliance officer’, who is responsible for
auditing and retaining records regarding the functions and purpose of the equipment;
this should take place on annual basis. The system itself must be maintained
appropriately, with detailed documentation and system manuals available to users. In
addition, a detailed code of conduct must be drawn up. The document has to include:
the purpose of camera, user training, complaints procedures, incident reporting and
how recorded media will be kept (Parsons, 2002). Despite this legislation there are
still criticisms that suggest the law is not robust enough to handle the CCTV.

There are criticisms of the laws which protect the public from unethical and abusive
uses of close-circuit camera technology. These criticisms include: the lack of power
given to law enforcement agencies, the confusion surrounding clarity and
applicability of the law; the Data Protection Act’s narrow scope on CCTV uses.
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It has been argued that while the Data Protection legislation which regulates close-
circuit television is robust in its written form, in reality it lacks enforceability. This is
supposedly due to the lack of power given to law enforcement agencies to put data
protection laws into effect. This point is argued by the National Consumer Council
(NCC), who says that the laws surrounding CCTV do not provide the Information
Commissioner the required powers to enforce them. The CEO of the NNC Ed Mayo
argued, "We are living in a surveillance society but our data protection laws aren't up
to the job” (Anon 2, 2005). This concern is of fundamental importance. If the
regulatory body for information security is unable to enforce Data Protection laws, it
is fair to say that potentially sensitive CCTV footage could be held and used by
anybody.

There is also the issue of ignorance on the part of those with CCTV installations. It
has been claimed that many facilities which use close-circuit television systems are
not aware of the practice they are legally obliged to follow. Ed Mayo adds to this
point, “Research consistently shows that many companies fail to comply with data
protection legislation--often unaware of their legal responsibilities” (Anon 2, 2005).
This is particularly worrying as it means that many persons and institutions are
operating their CCTV cameras illegally. Some research has suggested that up to 90
percent of CCTV cameras are operating illegally. This has a knock-on effect, as
evidence acquired illegally will not be fit for use in court, which will lead to possible
acquittals of suspects (Hall, 2006).

Another criticism of the legislation is that it does not cover all types of CCTV
recording. The Data Protection Act only has the range to prosecute for footage that
affects an individual’s privacy. This was highlighted in a recent court appeal where
the judge decided that two factors were important in deciding if information affected
an individual’s privacy. Firstly, “a person had to be the focus of the information” and
secondly, “the information must tell you something significant about them”. This
suggests that it is not the mere act of recording individual’s behaviour, but rather the
intended use of the recording that is subject to legal scrutiny (Anon 6, 2004). If the
law was to remain this way, it would spark further ethical debate surrounding the
definition of ‘privacy’ and what rights citizens have to it.
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The arguments that have been discussed suggest that there is a growing need to
reform the laws that govern CCTV surveillance. One area where the law could be
improved is in its execution, which could be done by giving the Information
Commissioner more power. Secondly, people could be made more aware of the legal
obligations that come as part of operating CCTV equipment in public spaces. Finally,
there is an argument to create a separate statute law for surveillance, which would
include very specific and rigid stipulations regarding close-circuit television.

Currently the body responsible for enforcing and prosecuting those who are breaking
Data Protection laws is the Information Commissioner. However, reform is needed in
order to ensure he has the rights to administer and enforce the law to its full extent.
One change, which has been suggested by the National Consumer Council, is that the
Information Commissioner be given the right to conduct unannounced checks on
persons and institutions with CCTV facilities installed. He would have the rights to
inspect the facilities and issue prohibition notices to those in breach of The Data
Protection Act (Anon 2, 2005). Along similar lines, the Information Commissioner,
should be given more powers to write the necessary updated codes of practice,
required to move with changing surveillance technologies. These proposed rights
would allow an independent body, in this case the ICO, the delegated legislation
required to put the Data Protection Act into full effect.

If indeed there is a mass state of ignorance surrounding the obligations of those who
operate CCTV cameras, then action must be taken to resolve this. For any law to be
effective it must be clear and explicit to all. In order to improve this situation,
regulations must be put on the manufacturers and distributors of the technology itself.
It is, in many ways, the responsibility of the service provider to inform their
customers of the legal requirements and ramifications that are essential for legitimate
use of their products. This new responsibility for manufacturers would raise
awareness of the regulations. In addition, it would provide close-circuit television
operators the opportunity to attribute blame to the providers of the close-circuit
television who do not inform them of the law’s position on surveillance usage.

Close-circuit television is currently not regulated expressly by statute. This means that
currently, judges have to apply the codes of practice and stipulations that are derived
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from the Data Protection Act in order to decide cases. This, in some cases, has lead to
confusion and new precedents being set by judges. In order to bring solidarity, a new
Act of Parliament could be written into statute law, which would express the
conditions for legal operation of close-circuit television. The very process of creating
this new Act, would stir the ethical and social debate that has grown increasingly
important to Britain. Any potential Act on surveillance should specify rights to
privacy and whose obligation it is to protect it. It would also stipulate who and how it
would be enforced, with strict and explicit punishment for those who contravene it.

While these recommendations for reform offer a great deal in terms of improvement,
they themselves are not without their drawbacks. For example, giving the Information
Commissioner more power might seem like a good idea, this could have negative
effects. It could be argued, the idea of placing responsibility on to surveillance
equipment manufacturers unfair and unpoliceable. Similarly, creating a separate
statute law to regulate surveillance – and specifically CCTV – is impractical.

The proposal to provide the Information Commissioner with more power and abilities
to enforce Data Protection laws has several disadvantages. One of the most obvious is
that it would put such pressure on legitimate security system’s operators, that they
would be unable to continue providing essential CCTV surveillance. To elaborate,
giving the Information Commissioner the right to make unannounced inspections on
facilities with CCTV security is, a ‘scare tactic’, designed to worry people into
nervous and bureaucratic precautions. If individuals and organisations had to spend
unnecessary time and money, detailing and recording all of their actions, it would
detract from their efforts in security and crime prevention. Another problem with
giving the Information Commissioner such abilities is the logistical issues that are
involved. The sheer scale of CCTV across Britain would mean the cost and manpower
involved in the task of inspecting it, would make it impractical.

One of the suggested points for reform is to make it mandatory for close-circuit
television manufacturers and distributors to inform their customers of their legal
responsibilities. This however, is flaw for two reasons. Firstly, it is unreasonable and
unfair to expect such companies to take any sort of liability for how their products are
utilised. Given that close-circuit television technology can be used in a number of
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ways, the technology itself is not inherently controversial. Creating more codes of
practice for manufacturers and distributors to follow will not necessarily solve the
problems of ignorance for CCTV operators. Secondly, many of the close-circuit
television manufacturers are based abroad and companies wishing to purchase cheap
equipment will often seek custom with them. These companies would not be able to
be regulated by such laws.

The final suggestion for reform involves creating a statute law, separate from the Data
Protection Act 1998, to regulate surveillance and close-circuit television. This is
complex and impractical. The process of creating a new Act of Parliament is a lengthy
and complex one and it would be especially so in the case of surveillance. Britain has
the multilayered surveillance systems that are driven by ever improving and changing
technologies. This would mean that any new Act of Parliament would soon become
obsolete, just like the old surveillance technology that would have been replaced. For
this reason it is much wiser to allow judges the flexibility to appropriate their own
judgement calls and use precedents set by high judges in common law.

In conclusion, the issue of close-circuit television as part of a rapidly developing

surveillance matrix in Britain serves for important debate. Alarming statistical
information has shown that the numbers of CCTV cameras and the regularity at which
people are recorded puts Britain in the bracket of a ‘surveillance society’. Currently
the laws that govern close-circuit television are those that are part of the Data
Protection Act 1998 and CCTV Code of Practice. These have been criticised for not
being robust enough, failing to provide law enforcement with the necessary powers, a
lack of awareness surrounding the stipulations and not being explicitly part of statute
law. These criticisms have lead to useful suggestions for reform. However, they have
been countered by strong arguments against reform. It is fair to say, there must be a
balance between the security surveillance can provide and British citizens’ right to
privacy. From the discussions and suggestions on reform of the Data Protection Act
1998, the most practical and reasonable proposal was that the Information
Commissioner be given further powers. While these powers would have to be
carefully installed and then monitored, they are entirely necessary due to Britain’s
developing state of surveillance. It is fair to say, Britain’s current Data Protection
laws are not robust enough to regulate Britain’s rapid growth in CCTV surveillance.