Article 8 European Convention on Human Rights – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
This week in Cardiff a man has taken legal action in response to his facial image being recorded by South Wales Police using automatic facial capture technology. It’s not that your face is simply videoed, as it is in CCTV etc, but your facial features are mapped using computer software. “It is just like taking people’s DNA or fingerprints, without their knowledge or their consent,” said Megan Goulding, a lawyer from the civil liberties group Liberty.
How much privacy do we have/expect anyway?
You’re doing your weekly shop in Tesco and someone takes a photograph of you. Do you have a right to privacy? You’re sitting in your car in a traffic jam and someone records you on their phone. Do you have a right to privacy? Ultimately, the answer is no. Once in a public space (and your car, what with the windows and all, counts), you have no right or expectation of privacy.
You may have surmised that there is protection from the state and protection from individuals built into Article 8 quoted above. You’d be largely right. But what sort of expectation can we have for privacy when everyone has a camera in their pocket and there is a security camera on every corner? There is no right to privacy in public but this legal theory was developed before the prevalence of technology made it possible for people to record and store your appearance, actions, and speech with ease.
So with individuals now able to surreptitiously record us what about the state? A man was recently fined for covering his face from the police facial recognition camera in London. Other than cost/ineffectiveness it’s hard to imagine anything but a wider rollout of this technology.
So you’d be forgiven for thinking in your home (or should that be a smartphone), “I’m sure to be protected there right?” Not necessarily. Theresa May’s crowning achievement as Home Secretary was to introduce the Snoopers Charter. This allows state agencies from the police to the Scottish Ambulance Service Board to get warrants for access to your communications and other personal data. And what happens that data once the agencies have it? Only ten years ago, the police were found to be holding onto innocent peoples DNA indefinitely.
That says nothing of scandals at the corporations that are the size of states. I’m looking at you Facebook, here, here and here. And you Google (who’s company motto once upon a time was “Don’t be evil.”), here, here, and here.
So what to do? Sorry I’ve no happy ending here, just assume you’re always being watched. Because you probably are. It’s not 1984, it’s not modern day China. BUT if you ever have to ask if you have an expectation of privacy in a situation – you probably don’t.