1.0 PRIVATE LAND
1.1. “Schools are private property. People do not have an automatic right to enter. Parents have an ‘implied licence’ to come on to school premises at certain times”
Source: https://www.gov.uk/government/publications/controlling-access-to-school-premises/controlling-access-to-school-premises
2.0 PRIVACY & DATA PROTECTION
2.1 In England and Wales it isn’t illegal to film someone in a public place without their consent unless the video is recorded for nefarious purposes. There is no expectation of privacy in a park or the street, for example.
2.2 Places such as shopping centres, restaurants, or museums may appear public but are, in fact, private. In these situations, it’s best to get all parties you record to sign a model release form to avoid facing any charges. The same applies to a school, as in 1.1 above, which is private land.
2.3 If you have not signed a release giving express permission to be recorded whilst on private land. The video cannot be recorded.
2.4 Depending on the content of the video that’s being recorded, there’s a chance of being prosecuted for copyright infringement as a direct consequence of illicit video recording.
2.5 While copyright infringements are predominantly a civil matter, they can occasionally be treated as criminal matters, resulting in fines of up to £50,000 and even a 6-month prison sentence from a Magistrate’s Court. You can’t always envisage such a high bar of infringement, but there are penalties for such a breach.
2.6 Privacy rights are protected by the Human Rights Act 1998, which aims to prevent other people from interfering with your life. It stipulates that personal information about you, including videos, photographs and correspondence such as letters and emails, shouldn’t be shared publicly without your permission.
2.7 Use of video footage on private land is strictly governed by the Data Protection Act 2018, requiring the permission of the individual being recorded to then publish such footage.
2.8 The legality of posting a video of someone in England and Wales without their permission comes down to how the video was filmed. If the video was filmed where there is no expectation of privacy (a public place), then it would be legal to post the video on-line or on your social media channels. If the video is filmed secretly where there is an expectation of privacy then it would be illegal to post it on-line.
2.9 Schools are private property.
3.0 FAIRHURST V WOODWARD 2021
3.1 The parties in this case are neighbours who both have access to a shared driveway leading into a large private parking area, containing a number of spaces used by local residents. Both of their properties back onto this car park. Dr Fairhurst became aware that Mr Woodard had installed a floodlight and sensor, and a video and audio surveillance camera with an integrated motion sensitive spotlight, both pointing in the direction of the car park. He had also installed a combined doorbell and video and audio surveillance system by his front door, a security camera in his windowsill which both pointed at the street, and a second spotlight camera attached to another neighbour’s wall pointing down the driveway towards the car park.
3.2 Dr Fairhurst’s case is that Mr Woodard was not honest with her about these devices, unnecessarily and unjustifiably invaded her privacy by their use and intimidated her when challenged about them. She argued that this amounted to a nuisance, a breach of data protection law.
3.3 The parties agreed that the images and audio files collected by Mr Woodard were personal data within the meaning of UK data protection law. Their transmission to his phone, computer or other device, and their retention and onward transmission to others (whether neighbours, the police, or the cloud for storage) constituted processing of personal data. This meant that Mr Woodard was a data controller and accordingly must comply with the principles set out in Data Protection Act 2018.
3.4 In your child’s case, the person who recorded the video is in breach of Data Protection law and the ICO have a guide as to how to deal with such breaches when the data has been gathered on school grounds, set out below.
4.0 INFORMATION COMMISSIONER’S OFFICE (ICO) - Personal use & social media
4.1 If you post photos or videos taken at a school event to your private social media account, only viewable by friends or family, this is likely to fall within the definition of personal use. This means data protection law does not apply.
4.2 However, if you post photos or videos to a public account, viewable by an indefinite number of people, this is likely to go beyond personal use. In this instance, you will need to be aware of your obligations under data protection law.
4.3 You are not necessarily prevented from posting images on a public account. However, you will need to consider whether individuals in the photos or videos would reasonably expect the images to be used in this way. Data protection law states that you must take extra care when using children’s personal data, to ensure their interests are protected.
4.4 If images of you or your child have been posted online, you can request that they are removed. We recommend that you first contact the account owner to ask them to remove the images.
4.5 In most cases, the account owner should agree to a request to take down images of another individual uploaded to their personal account.
4.6 We recommend allowing one month for a response. If they refuse or don’t reply you can submit a complaint to the ICO. At that point we may contact the account owner to ask them to resolve the concern. However, beyond this, it is unlikely that the ICO can take additional action.
Source: https://ico.org.uk/for-the-public/schools/photos/
4.7 If you are aware of the locations where the video has been shared of your child, then we suggest that you make a request these are removed from the public domain.
4.8 The ICO refers to school policies on data protection but having revised the publicly available policies for Ysgol Gyfun Bro Myrddin, the school only refers to data it possesses from it’s own data capture. Interestingly, the policy is specific about data they can obtain on pupils from third parties, which is limited to:
- Any previous schools your child has attended
- Carmarthenshire County Council Education & Children Services department
- Other local authorities
- The NHS
4.9 Does your school policy consider unsolicited video recordings made on private land?
4.10 You need to raise this issue with the school so they can have a better policy moving forward, so pupils can be educated on the use of ‘social data’ somewhat better in terms of the legal ramifications that can follow.
4.11 We suggest you formally object to the video being made available to anybody else, and for all those connected to the school with regard to the video should have the school request the video is deleted under a breach of the Data Protection Act 2018.
4.12 The Data Protection Officer for the school needs to be contacted.
4.13 If the police have had sight of the video, there is a guideline by the Crown Prosecution Service on the use of illegally obtained video footage, which may benefit your child in dealing with it’s removal request, set out below.
5.0 CROWN PROSECUTION SERVICE - Unfairly Obtained Evidence
5.1 Section 78 of PACE (Police and Criminal Evidence Act 1984) enables a Court to exclude evidence which would otherwise be admissible against a defendant, on the basis it would be unfair to adduce it.
5.2 The nature of the Court’s discretion was explained by Lord Lane C.J. in the case of R v Quinn [1990] Crim. L.R. 581: “The function of the Judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if … all relevant evidence [is heard] which either side wishes to place before [the court], but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.”
5.3 Prosecutors should note that each case will turn on its own facts, and that the Courts have resisted attempts to fetter their discretion – see for example R v Samuel [1988] Q.B. 615 where the court held that because of the infinite variety of circumstances, it was undesirable to attempt any general guidance as to how the discretion under section 78 should be exercised.
5.4 Challenges to the Fairness of Evidence: Areas where successful challenges may be made include where evidence has been obtained as a result of:
- Breaches of the European Convention on Human Rights.
- Breaches of the Codes of Practice issued under PACE.
5.5 Your child has a case that their basic Human Rights have been breached by being recorded on private land where in a school, which should have a mobile device ban (if no public policy is available, enquire if confiscation procedures are used) then your child can demonstrate they would not expect to be recorded and have their data shared.
5.6 If there is an incident and the Police have had the footage, you must ask is this is a proportionate representation of the whole event?
6.0 CONCLUSION OF PROTOCOLS
6.1 Inform the parents of the person who recorded the video that the footage is in breach of the Data Protection Act 2018 and the Human Rights Act 1998 on the basis the footage was obtained and then distributed into the public domain of a minor who is subject to the protection of privacy when on private land and in a place where video recordings should not be expected to be sought.
6.2 There are damages that can be pursued, but you may choose to inform them you are not going to purse this avenue if the footage is simply deleted and removed from the public domain. Ask it is removed within 7 days but take heed from the ICO they will not intervene until a month has passed.
6.3 This is dependant on the situation and the knock on affects of mental health in the circumstances, your child and you as a family may suffer.
6.4 Ask the school for their written plan on how to deal with ensuring this situation doesn’t re-occur, or how it is intended to be mitigated at best.
6.5 Seek independent legal advice at all times.