Street View comprises 360 degree photographs of a town's
streets, and is already live in the US and some European countries.
It was launched today in the UK with coverage of 25 towns and
cities.
People can be seen and sometimes identified in the photos as
they originally appeared, but Google has implemented automatic
image blurring technology for faces and car number plates.
Privacy watchdog the Information Commissioner's Office (ICO) has
given the service the all-clear, saying that the blurring means
that the service does not publish personal information and so does
not break the law.
Davies told OUT-LAW.COM that he will
mount a legal challenge to the ICO's opinion.
"There still hasn't been a formal complaint put to the
Information Commissioner, but we will [file one] now on the basis
of prior consent being needed for this service," said Davies. "I
think there is something of a test case in this. We are arguing
that a line has to be drawn to empower the individual to make a
conscious decision whether to allow his or her images on to such a
system."
The UK's privacy watchdog the Information Commissioner's Office
(ICO) endorsed the service last summer.
"We are satisfied that Google is putting in place adequate
safeguards to avoid any risk to the privacy or safety of
individuals, including the blurring of vehicle registration marks
and the faces of anyone included in Street View images," said an
ICO statement.
Google also said that people who did not want their photo to
appear on the service could complain and have it taken down.
"Although it is possible that in certain limited circumstances
an image may allow the identification of an individual, it is clear
that Google are keen to capture images of streets and not
individuals," said the ICO last summer. "Further there is an easy
mechanism by which individuals can report an image that causes them
concern to Google and request that it is removed."
Davies said that he is not sure what exactly the legal basis of
a challenge to the system or to the ICO's opinion would be, but
said that it was an established legal principle that a person's
consent is required for a photograph that is used commercially.
"There have been highly successful cases in the courts regarding
celebrities who have not given consent for the commercial use of
their images. That may or may not fall within the Data Protection
Act. In any event we think there is enough case law for this to
proceed, to form a basis for a challenge," he said.
Technology lawyer Struan Robertson of Pinsent Masons, the law
firm behind OUT-LAW.COM, said that Davies's assessment of the law
is flawed.
"There is no general legal requirement that people's permission
should be obtained before a photo of them is taken in a public
place, even if the purpose is a commercial one," said
Robertson.
"People will have rights if the photos are deemed to be personal
data, and collecting images in a way that complies with the Data
Protection Act was a legal challenge for Google," said
Robertson.
"The Act says that people should be notified about their
pictures being taken before that happens, though consent is not
required. Short of using loudspeakers on cars, it was impossible
for Google to notify people that their pictures were being taken.
But the company's safeguards, in particular the blurring of faces
and number plates, have been approved by the Information
Commissioner, a blessing that is extremely important."
Robertson said that if circumstances arise in which people
suffer as a consequence of Street View, they can take specific
action under the Data Protection Act.
"There will be some cases where people are identifiable on
Google Street View because the blurring technology missed them or
because they can be recognised despite the blurring," he said.
"These individuals can complain to Google if they're upset by the
posting of their image and they can have the photos removed. If
they've suffered damage and distress as a consequence of the
photographs, the Data Protection Act gives them a right to sue, and
Google knows that."
Individuals have won cases in court by arguing that photographs
of them breached their human right of privacy, rather than their
rights under the Data Protection Act, but Robertson said that these
rulings do not support Davies' argument.
"In Street View images, the inclusion of people is incidental –
they just happen to be on the street," he said. "That is not the
case in any of the privacy rulings, where the person bringing the
claim was the focus of the photo."
Photographs of author JK Rowlings's infant son, David Murray,
led to a ruling last year in the Court of Appeal.
"If the photographs had been taken…to show the scene in a street
by a passer-by and later published as street scenes, that would be
one thing, but they were not taken as street scenes but were taken
deliberately, in secret and with a view to their subsequent
publication," wrote Sir Anthony Clarke. "They were taken for the
purpose of publication for profit, no doubt in the knowledge that
the parents would have objected to them."
Sir Anthony also said that famous people have less of an
expectation of privacy than those that do not seek the spotlight.
"David may have a reasonable expectation of privacy in
circumstances in which his famous mother might not," he wrote.
Robertson said that he doubts Davies' challenge will
succeed.
"There are safeguards and remedies available, so while Street
View might make some people uncomfortable, I can't see any legal
grounds for stopping it," he said.
