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, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we reveal the legal challenge about to be mounted after today's launch of the Google Street View service in Britain.
But first, here the top stories from OUT-LAW.com, where you can read breaking technology news throughout the week.
Irish ISPs announce customer cut-off fight back
and
Juror tweets could force retrial.
Irish Internet Service Providers (ISPs) have rejected claims that they are responsible for users' copyright infringement. They have said that their operations are protected by law.
The ISP Association of Ireland has said that there is no legal basis for the music industry's demands that they disconnect copyright-infringing internet users, and that the law already provides ways for content owners to pursue copyright infringers.
Ireland's biggest ISP, Eircom, has said it will comply with music industry demands, but the ISPI Association of Ireland (ISPAI) has said that the rest of its members will not.
"Privacy of user communications is protected in European and Irish legislation," said the ISPAI's response to the demands. "ISPs cannot be expected to ignore these merely because it does not suit another private party. To do so would breach the privacy of our users as well as having serious implications for the continued location of international e-business in this country."
A juror who published Twitter messages during the course of a trial has undermined the trial process and its verdict, lawyers have claimed while launching an appeal. The US juror told reporters he did not think posting the messages was wrong.
An appeal has been lodged in an Arkansas court against a $12.6 million ruling against a building materials firm. Lawyers for the firm have said that the messages, or 'tweets', revealed the juror's bias.
One post read: "I just gave away twelve million dollars of somebody else's money".
The appeal seeks a new trial, claiming the juror was biased. He "was predisposed toward giving a verdict that would impress his audience", the lawyer said.
Those were some of the top stories from OUT-LAW News.
Today Google launched its long-awaited and controversial photo—mapping service, Street View. The subject of howls of rage from privacy activists and law suits from aggrieved householders in other countries, the service has now become a part of British life.
The streets and houses of 25 UK towns and cities have been photographed and collated so that you can punch in a postcode and take a virtual tour of the streets.
Houses are there, as are shops, cars and landmarks, but so are people, leading privacy campaigner Simon Davies of Privacy International to say that he will launch a legal challenge to the service.
But does he have any legal basis for his action? And what are the problems with Street View anyway?
Well, Davies believes that it is dangerous for a private company to have such a well documented record of the streets where we live. He thinks we should all have been consulted first.
Simon Davies: We would have argued and will argue that Google should have consulted widely before it deployed such a system. I don’t think it is Google’s right to go into any community without consultation. You know, a strategy by a company, not even based in this country, that is just going to capture every street of a city or a country without consulting their people is something which I find abhorrent. I think it is wrong and I think the outcome over a period of months or years could be quite devastating.
Davies wants to go further than criticism, though. He wants to mount a legal challenge to this service.
In this he has one major obstacle. Privacy watchdog The Information Commissioner's Office (ICO) monitors organisations' compliance with the Data Protection Act, the law that allows us to keep control of our personal data. The trouble for Davies is that it gave Street View the green light last summer, saying that the service did not abuse our privacy or misuse the personal data of people accidentally snapped on the streets.
When exporting the service from the US to Europe, Google was aware of the stricter privacy laws here, so it began using technology that automatically blurs faces and car registration numbers. It said that this protected the privacy of those caught on film, and the Information Commissioner agreed.
Davies says the Commissioner is wrong.
Simon Davies: Privacy International expressed concern when Google first announced that it planned to launch the service at some point in the future. I have looked at the information and the Commissioner got the wrong end of the stick. We were arguing that it is not defensible to capture images for commercial purposes without prior consent. The Information Commissioner came up with an ad hoc opinion that provided there was the right to expunge the images post capture then the service was compliant. Well, that completely sidesteps our principal concerns.
Davies wants to challenge the Commissioner's opinion and said he is prepared to go to the Information Tribunal on appeal if necessary. The Commissioner, though, can only regulate the law as it stands, so what is the legal basis of Davies' objection?
Simon Davies: We have got a little, I would imagine, test case here in the sense that we are arguing that a line has to be drawn at some point to empower the individual to make a conscious decision about whether to allow his or her images onto such a system.
Matthew Magee: But is there a legal basis for any challenge that you would make?
Simon Davies: We think there is a legal basis but we are not sure as I say there is something of a test case about this.
Matthew Magee: I understand what you are saying about test case in that it is not ground that has been covered before, but a test case usually tests a law or a piece of legislation or something and I am still not entirely clear what the actual...what you are actually arguing about in Court. I mean what is it you think is actually illegal?
Simon Davies: There is already a basis of requiring prior consent before commercial use of images. That has already been established in the course of law in Britain. It certainly would be the case in a country such as Germany. The Courts are moving steadily towards providing people with a right to give consent before such images are taken. Whether, as I say, this would be under Data Protection law or under a different law we are not certain yet. What we need to do is clarify whether the Data Protection Act first provides some level of protection for citizens or not and that is the way we will proceed first.
Struan Robertson is a technology lawyer with Pinsent Masons, the law firm behind OUT LAW. He said that there is nothing in UK law which says that a person's permission is needed before the taking of a photo, even if it is to be used for commercial purposes.
Struan Robertson: There is nothing in UK law that says you always need consent before you take somebody’s photograph to use it commercially. There is a general rule in the Data Protection Act that says before you start processing somebody’s personal data you have to notify them. It doesn’t talk about requiring consent from them in most cases it just talks about notifying them and that is a different thing. With Google it had a situation where it could only have notified people that their photo was being taken by announcing that on a loudspeaker on its car which just would have been completely impractical so what it did was approach the Information Commissioner’s Office and it discussed its approach and it discussed the safeguards that it had in place and the Commissioner said: ‘fine’. The commissioner endorsed the approach of Google.
Davies, though, says that cases involving celebrities have established a precedent.
Simon Davies: There have, of course been highly successful cases in the courts regarding celebrities who have not given consent for the use, commercial use of their images that may or may not fall within the Data Protection Act but in any event we think there is probably enough case law for us to proceed. It is not correct to assume that there is no privacy in a public space there is a level of intimacy that is anticipated in a public space, the law does give some sort of protection to individuals in a public space. I think again this is one of those areas of law which is quite grey, it is ill defined and we are hoping that certainly for future roll-out of technologies of what we can achieve through this complaint gives some level of clarification because at the moment there is an abysmal level of understanding about what is and what is not a private right in a public space.
In fact the Court of Appeal said last year that a person's privacy is invaded by a commercial photograph only if that person is the subject or focus of the photo. Sir Anthony Clarke, in his ruling, specifically said that this is very different to a photo of a public place which happens to include an individual.
Google gave us a statement which said that it believes the Street View service breaks no laws. “The images in Street View are lawful,” it said. "The Street View feature only contains imagery gathered on public property. The imagery is no different from what any person can readily capture or see walking down the street. Imagery of this kind is available in a wide variety of formats for cities all around the world." Google also said that anyone who objected to an image could easily flag it for review and removal.
The images are already captured and will only be updated every few years, so they do not give a clue to someone's current whereabouts. So what, exactly, does Davies object to?
Well, he says that he is nervous about potential uses as yet unimagined of this vast database of visual information.
Simon Davies: We don’t know how these images are going to be used. We have no guarantees, technological or otherwise, that Google’s face blurring, for example, will be maintained. Imagine that if in the future Google decides that it is going to process without any knowledge of the technology the images of your face for, let’s say matching purposes, facial recognition. Their act could very easily be something that Google does for benign purposes, apparently benign purposes. It cold be simply that if a service was offered to you as an individual, it could be something that is offered to law enforcement, we don’t know, we have no clue.
Robertson said that privacy laws will still be in effect in the future and that people will still be protected by them.
Struan Robertson: Well, Simon’s right that if Google changed the way that it is going to start using the data that it has it may cause problems, it may start breaking the law by using data in a different way, but, I mean that’s what the law is there for. The law remains the same. If Google changes how it uses the data then the Information Commissioner is likely to change his view of how Google’s compliance of the law and so action can be taken if Google oversteps the mark in future. Just because it’s possible for the service to completely change its nature in future that’s not really a reason to stop the service operating now.
That's all we have time for this week, thanks for listening. Why not get in touch with OUT-LAW Radio? We'd love to hear from you. Do you know of a technology law story? Is there something you would like to hear of? Get in touch on radio@out-law.com. Make sure you tune in next week, but for now, goodbye.