Case Study: What to consider in your CCTV/filming Policies around customers filming staff with phones, not just mounted cameras.
The use of CCTV in Social Housing is always a hot topic, but recently I’ve been asked about a slightly different issue – tenants/customers filming staff using their phones rather than a mounted camera. I’m going to use the term “customers” through the rest of this, as the principles apply to other types of customers too, not just housing residents, including – to really stretch the definition of customers – the parents of school pupils.
In the recent case I’ve been involved in (and another I’ve been asked about), the initial reaction from the staff involved was “you can’t film me without my consent.” Which I understand; it can be disconcerting having a camera turned on you when you’re just trying to do your job.
However, that is a knee-jerk reaction, and we need to take a deep breath and consider the legalities first.
Background
When CP Data Protection was carrying out a DSAR review for a client, we spotted that the customer had been told more than once, during phone calls to the call centre, that she was not allowed to use her phone to record any staff or contractors inside her home. Which of course we flagged to the Data Protection lead, highlighting that this was bad advice, because there was nothing to indicate the customer was causing any harm by filming with her phone.
From the customer contact records, we had formed a picture of what appeared to be happening here. The customer was an elderly woman, living alone, with impaired sight. And she kept receiving letters from the landlord telling her that “surveyors” would be visiting, but she didn’t understand what these several visitors were actually doing. At one point, when she asked what are they surveying, a customer service colleague told her that it might say “surveyor” but that was a catch-all term for all operatives and contractors. She wanted to film them with her phone so she knew what work they had undertaken, so she could how her daughter, as she was confused about the work that was needed and what was being done.
However, when my advice was passed onto someone senior in the customer service side of the business, there was very robust push back…and it got even more robust! This colleague said they were going by advice from their lawyers, and forwarded me an email from a solicitor who stated very firmly that staff not only could, but in her opinion should, refuse to be filmed, and simply down tools and walk out if the customer tried to film them and their work. Her reasons? The act of filming, according to this lawyer, was defined as Anti Social Behaviour (ASB), was also “probably a breach of tenancy” and the landlord could get “an injunction preventing the filming”. Oh, and that being filmed is “an oppressive working condition.”
Key Legal Issues
My response included:
- Recording film (and/or audio) for purely personal and household use, including sharing the footage with the police or landlord as evidence, is not subject to data protection law, as long as guidelines are followed (which are based on how the footage is used, not simply whether or not the camera films outside of a person’s boundaries – the ICO guidance is lacking this nuance.)
- Nothing I’m aware of raises her request (to film staff members using her phone) to the level of harassment.
- Filming could be a part of harassment or even ASB, which could be assessed as overriding the tenant’s right to film inside their own home. (There was no evidence in the customer contact records of harassment, though.)
- Simply filming should not be a breach of tenancy…so if there is anything in the tenancy agreement that explicitly bans recording, rather than causing distress or ASB, this should be reviewed and removed as a matter of urgency.
- The tenant could bring a discrimination case, as she appears to want to film due to her disability and vulnerability.
- Staff and contractors should be made aware of the possibility of being filmed in and around tenants’ homes, for transparency purposes.
- Recommendation to update the CCTV Tenant Use Policy to outline the default position on domestic filming, as well as the fact that misuse of filming/footage will not be tolerated.
Did the housing association take the advice?
Yes….but only once they obtained a second opinion! The original solicitor, who advised that filming was ASB, a tenancy breach, and created an oppressive working condition, is a housing law specialist. But the second opinion was sought from a different firm, and crucially, from a Data Protection specialist lawyer. It was gratifying to hear he had been completely aligned with my advice, although not a huge surprise.
Key Takeaways
Review your CCTV policies, and ensure they cover the use of CCTV and filming on phones and other devices, by customers/tenants.
All colleagues, especially those working directly with customers, need to be aware that they could be filmed doing their job and as long as the filming or footage isn’t being weaponised to cause harassment, it should be accepted.
If you have any further questions or or comments, give me a shout! Clare@cpdataprotection.com