Out-Law News | 23 Mar 2009 | 9:37 am | 3 min. read
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.