Google
Maps Street View is the latest service from the search giant.
Vehicles with multi-lens cameras travelled the streets of San
Francisco, New York, Las Vegas, Denver and Miami and snapped
everything in their paths. The images were uploaded to Google Maps
and now, when you're looking at a location in Google Maps that has
been photographed, you can see the pics. If you live in a featured
city and you've been passed by a Google van or a car from its
partner, Immersive Media, the cameras probably saw you too.
Privacy fears were
first raised by New Yorker Mary Kalin-Casey. She told
the Boing Boing blog that, when trying out Street View,
she recognised her cat, Monty, through the window of her own home.
She said that the experience made her shake (though she'd have more
cause for alarm if the camera captured her Georgian
silverware).
I haven't seen anything that has made me shake, at least not
yet, though I'm still looking and hoping. I love Google Maps and
Street View just makes it better. But if it comes to Europe,
there could be complaints that have grounds for
litigation.
Complaints could be triggered by the images
that spread across the internet like wildfire – the
celebrity entering rehab or the nude at the window. And complaints
could be triggered by the images that have a more personal impact
on lives – the malingerer in the park or the husband on his
paramour's porch. It does not matter that the pictures were taken
in a public place.
If you are caught on camera and complain to Google,
Google will remove the pics. But that may not be enough for
Europe's courts.
Our data protection regime lets us take holiday snaps, even of
strangers, provided we're doing so for private purposes. But if
we're taking snaps for commercial use, where individuals are
identifiable, there is no such exemption. We need to notify the
subjects, and that's hard for Google to do. Even a loudspeaker on
top of the camera cars ("Hi, it's Google here, say 'cheese'
everybody!") might not suffice.
The law sets extra requirements for so-called sensitive personal
data: it demands explicit consent, not just notification. That
means when taking pictures of someone leaving a church or sexual
health clinic – which could reveal a religious belief or an illness
– camera cars might need to pull over and start picking up
signatures.
The need for individuals to be identifiable is an important one:
Monty the cat looked like a blob to me. Cats can't sue, even in
Europe, but humans are just as hard to identify in Street View from
what I've seen because the resolution is too low.
It's not just those who are identifiable and caught in the act
that can give Google a tough time. We Europeans could ask Google to
ensure that no picture of us appears in Google Maps in the first
place.
The nature of this rule varies across Europe, but in the UK we
have a right to
prevent the display of an image that would cause
substantial distress. All we have to do is send an email to Google
asking that it does not display a picture of us: "Dear Google, I
think your camera caught me in Hyde Park this lunch time canoodling
with my wife's best friend. Please make sure I can't be seen in
Google Maps because this may cause me substantial distress. I've
attached a pic of what I look like." If Google refuses or ignores
you, you can go to the Information Commissioner and ask him to
enforce the right. If there's damage and distress, you can sue.
Street View is rather like CCTV and the Information Commissioner
has published a
CCTV Code of Practice (35-page / 434KB PDF). The guidance
is surely impossible for Google to follow: "Signs should be placed
so that the public are aware that they are entering a zone which is
covered by surveillance equipment … [These signs] should be clearly
visible and legible to members of the public". The guidance adds
that "individuals sunbathing in their back gardens may have a
greater expectation of privacy than individuals mowing the lawn of
their front garden". Perhaps the Information Commissioner will take
a pragmatic view and say that footage of someone walking down a
street is acceptable, but footage of someone entering rehab is
not. Maybe a mashup of Google Search and Google Maps could
locate abortion clinics etc. and delete the footage.
Then there are our human rights.
On an evening in August 1995, a 42-year-old called Geoffrey Peck
attempted suicide by cutting his wrists with a kitchen knife while
on Brentwood High Street in Essex, England. CCTV cameras caught the
action, the council's CCTV operator alerted the police and the
police intervened. Peck lived. But still images from the CCTV
footage were sold by the local council to the media. Peck took his
complaint as far as the European Court of Human Rights and won.
The court said that the disclosure of the footage was a
"disproportionate and unjustified interference" with Peck's private
life, in violation of Article 8 of the European Convention on Human
Rights. The court considered it significant that "[Peck's] actions
were seen to an extent which far exceeded any exposure to a
passer-by or to security observation and to a degree surpassing
that which [Peck] could possibly have foreseen." Peck won damages of £7,000.
There's a qualification here: the Human Rights Act generally
applies only to public authorities – and Google is not a public
authority. But it does not escape completely. Courts are public
authorities, and if someone sues Google for breaching the Data
Protection Act in similar circumstances, courts will seek to
protect a person's human rights in deciding the case. So human
rights enter the case by a back door.
You can
see Brentwood High Street in Google Maps, but not with Street
View. Perhaps you never will.
By Struan
Robertson, Editor of OUT-LAW. These are the personal
views of the author and do not necessarily represent the views of
Pinsent Masons.
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