Privacy International's Simon Davies argues that Google should
have obtained consent from everyone who features in the
photographs. He says that the law demands it and that Privacy
International will file a formal complaint to this effect with the
Information Commissioner's Office. I don't accept that the law
demands consent, although if Google were to leave faces on the
images without making any effort to blur them out then I agree that
notice should be provided.
Street View potentially invokes two sets of rights: the UK's
Human Rights Act, based on the European Convention of Human Rights,
which gives everyone a right to respect for their privacy, and the
Data Protection Act.
The Data Protection Act requires companies to notify people when
collecting their personal data. In most cases, consent is not
required, just notification. Taking one person's portrait for a
commercial use would require notification of who is taking the
photo and why.
But taking a photograph of a street, in which people happen to
appear, is less clear-cut: there is an argument that this is
processing of their personal data under the UK Data Protection Act;
but there is another argument that it is not. That debate has not
been resolved by the courts in the UK, and it is a factor that the
Information Commissioner's Office (ICO) will have considered when
Google approached it to discuss Street View.
The ICO, the authority tasked with protecting our data, will
have taken other factors into account as well. How to notify would
have been one of them. Should Google have attached loudspeakers to
their vehicles? ("Hi, it's Google! Smile everybody, or run for
cover!") – or is that unrealistic?
Another factor: Google uses software to spot human faces and
vehicle number plates and blur them. And another: that technology
is not perfect because some faces can be seen in the service
without blurring (just as the heads of horses and statues may have
been blurred unnecessarily) and some people with blurred faces will
still be recognisable to those who know them. The fact that Google
makes it easy for people to complain about featuring in Street View
will also appease the ICO: people can have their images
removed.
The ICO concluded that, even if personal data was being
processed, the safeguards were appropriate. It gave Google's fleet
of camera cars the green light. This does not mean that the Data
Protection Act cannot apply, only that Google was justified in
launching its service as it did. If someone suffers damage and
distress because they appeared in Street View, they are still
protected by the Act. They can't have the entire service taken
off-line, because that would be disproportionate to the harm, but
they might win damages under the Data Protection Act.
As for our Human Rights, case law acknowledges our expectations
of privacy when our photographs are taken. On the street, the
courts say that these expectations generally are low, unless we're
the focus of the picture. Author JK Rowling successfully argued
that a paparazzo's photograph of her family breached her infant
son's right to privacy (as opposed to her own), where the family
was the focus of the camera.
The Court of Appeal said: "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." By the reasoning of that
case, Google's focus on street scenes, not individuals, makes a
breach of human rights unlikely.
There are valid emotional arguments against Street View. I don't
think there's a strong legal one. One last factor that the ICO
might have considered: many people are likely to find the service
useful. Many people and businesses will be grateful that our ICO
can take a pragmatic view of new technology. Regulators should not
stand in its way without good reason.
By Struan
Robertson, editor of OUT-LAW.COM. The views expressed
are the author's own and do not necessarily represent the views of
Pinsent Masons.
This piece first appeared on the website of Computer Weekly on
Friday.
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