A text transcription follows.
This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT‑LAW Radio, the talking outpost of the OUT‑LAW empire where we discuss the pressing technology law issues of the day with the finest experts around.
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It is the 7 October 2010 and my name is Matthew Magee. This week we discuss a system for small hoteliers that hopes to keep track of those who wreck rooms or run out without paying.
For many people travel is about freedom – about going places you are not known, spending time as a stranger, perhaps doing things your more everyday self might disapprove of.
But for people who take this approach a bit far, remaining a stranger may no longer be an option, thanks to a database that aims to track, name and shame people who behave badly in hotels.
The brainchild of Management Consultant Neil Campbell, the database contains the name, address, phone number and incident details of hotel and bed and breakfast guests who have damaged rooms, caused excessive noise and aggravation, or who have run off without paying.
Campbell has formed Guestscan, a network of B&B and small hotel owners who will have access to the database and report their own incidents to it.
For some this will appear to be a neat way to protect vulnerable small business owners from marauders and frauds. For others it will serve as yet another example of the creeping database state in which all our movements are tracked by government or companies.
Campbell says that he decided to set Guestscan up because he thought that smaller hotels and guest houses were not in a position to protect themselves like the big boys, and that they deserved some security.
Campbell: A lot of larger operators do take credit card details before they take a booking and therefore if there is a problem, if somebody leaves without paying they just charge the credit card or in fact if they take anything they just charge the credit card anyway. So we felt it was those people with perhaps just a B&B in a home who did not have the facility to take credit card details that would be most likely to use our service.
The antennae of anyone with an awareness of data protection law must be twitching by now. You cannot start building databases of information about people without working quite hard to make sure you comply with the Data Protection Act. But as long as you do that, says Data Protection Law expert Rosemary Jay of Pinsent Masons, the law firm behind OUT‑LAW, there is no reason not to collect personal data.
Jay: There are lots of collections of information about people's behaviour where that behaviour can impact on others and where it's fair that others should be warned. So if you think about credit files if you think about local authority registers of people who are violent to staff. So you have to start off a point where it is not necessarily unreasonable or unfair to keep a record of people whose behaviour is so bad that it can have a negative impact and it is fair that you should be warned commercially or personally. You have got to treat people fairly so you have got to have rules about when you would put people on this register and it cannot be for things that are trivial or subjective. You have got to have some really clear parameters about this kind of behaviour is unacceptable.
Beyond the general requirement for fairness, the law does make specific demands. Jay outlines a few of them.
Jay: People have got to be aware that this is going to happen and what the consequences are. So if your rules are: in this hotel you must not dance naked in the corridors and if you do we will put you on our blacklist then the fair thing is to tell them about the blacklist and to make it clear to them that this will happen if these behaviours occur. So let us say you smoked in a non‑smoking room. Now you would not expect to be blacklisted for that. It might be a mistake. You might not have realised. You might have been put in the wrong room. If it is something unexpected that you would not anticipate you should know about that specifically and then the second thing is when you go on this blacklist you should know that you are on it. You should be told and told why because there might have been a mistake. It might have been somebody who did not like you who was behaving in a nasty way and putting you on out of some vindictive motive and there are questions about how long you stay on this blacklist. How do you get off it?
These seem like onerous burdens, but Campbell says he has thought them through and taken careful legal advice in an attempt to ensure his database complies with the law.
Campbell: Anybody booking with one of our members would be made aware that they are part of the Guestscan Association. There is a Guestscan window sticker at the entrance to all of our members' properties and if anybody does cause a problem either the owner of the property will tell them that they are being reported to the Association or if that is not possible because they have left without paying or perhaps they are trying to throttle the owner and it is not appropriate to tell them at that stage that they are going to be reported, we will advise the person that has caused the problems that they are going onto our database. There is no direct reporting onto the database. The process is that they report to us and we have the right to speak to the person that has been reported to us. We have the right to investigate what has been reported to us and we have got the right to determine whether the problem that has been reported is serious enough to be included in our database. Under the Data Protection Act, they have the right to get to know all the information that we hold about them.
Campbell hopes that by the end of this month his service will have 10,000 member establishments. This means that many thousands of people will have access to the database. But in a bid to prevent random trawling he says that hoteliers cannot simply read through the database, they have to put in a name or other details and then they can see if there is any entry made against that person, otherwise the database simply says it has no information on them.
Campbell also insists that someone only goes on the database for serious misdemeanours and that they only stay there for two to four years, depending on the severity of their actions.
Campbell: We are not looking to record trivial problems. The person that takes all the soaps and shampoos from a bathroom that is not going to be on our database. So these will be serious problems that we are recording and that I think does mean that we have probably got some people who will be on there for four years.
One way in which Guestscan might be seen to fall short of the Data Protection Act's demands is in the notification for guests that this data gathering is taking place. Does a sticker in the window really give them full notice of all this processing of their data?
Campbell: Obviously we are looking at the political side to ensure that people do understand that the implication of where they are booking, being a member of our Association. We also have the booking terms and conditions available at each establishment and we are looking into whether we should go further than that and advise people on registration that the hotel or bed and breakfast is a member of the Guestscan Association and the implications of that.
Another law that Campbell will have to watch out for is libel. It is not hard to imagine situations in which an angry hotelier might embellish a report, exaggerating a guest's bad behaviour. Information held in the database will certainly be regarded as being published when it is delivered to other hoteliers. Campbell hopes the system's checks and balances will prevent any libel liability.
Campbell: When somebody is reported to us we will take care to ensure that we believe what has actually happened has happened. I mean we are very keen to deter and stamp out any form of malicious reporting to us and therefore there are procedures that we ask our owners to put in place when they report something to us and that means obviously keeping either photographs of damage, names of witnesses, crime report numbers if there is fraud or theft and a lot of those things like that. We also do make it quite clear to our members that they indemnify us in the event that they have falsely or maliciously reported somebody to us.
So what happens to the people who do make it onto Campbell's database? Will they be without a bed for up to four years and will they be confronted everywhere they go with a litany of past abuses? No on both counts, guesses Campbell.
Campbell: I think, however, we're not going to get to the situation where people say: I am sorry you're on the Guestscan database, we can not accept your booking. All they will say is I am sorry we are full that day and of course the client can then go down the road and book at another hotel or bed and breakfast.
Unless they use Guestscan as well?
Campbell: Well I would like to think they would, that would be perfect. But I am not so naïve to think that we will get 100% coverage.
That's all we have time for this week, thanks for listening. Why not get in touch with OUT‑LAW Radio? Do you know of a technology law story? We would love to hear from you at radio@OUT‑LAW.com.
Make sure you tune in next week but for now, goodbye.
OUT‑LAW Radio was produced and presented by Matthew Magee for international law firm Pinsent Masons.