Shaming campaigns can get innocent people caught on camera
Published 20/04/2016 | 02:30
Dublin City Council was in the headlines in recent days for its new tactic against littering: putting up a large poster of people captured on CCTV illegally dumping in the north inner city.
While the photos were blurry due to the quality of the footage, the people involved could be recognised. According to the council, within hours they had been contacted by one of the people pictured, and dumping had stopped within a day of the poster going up. This might sound like a success story, but there's one drawback: this approach is legally risky and very probably in breach of data protection law. Using CCTV to prevent littering isn't itself a problem. Illegal dumping is a crime and using CCTV to detect and prosecute it will normally be a proportionate response.
While the general rule is that there should be notices warning that CCTV is in operation, even covert surveillance can be justified as a short-term and focused measure in areas where a crime is likely to be carried out.
The legal issues begin when the council uses the footage for purposes other than law enforcement - meaning the detection, investigation and prosecution of crimes.
Using CCTV images to shame those accused of dumping - instead of prosecuting them - would not meet the standards for law enforcement and would, most likely, be in breach of data protection law.
The Data Protection Commissioner has already been in contact with the council, which has said in its defence that it has not published any names or personal information. But this is a misunderstanding of data protection law - which applies whenever a person is identifiable, not just when the person is named. So while the council has said it intends to extend the initiative across the city, the likelihood is that this scheme will not be repeated.
In fact, it's surprising that the poster was put up at all.
In July 2010, all local authorities were advised by the Department of the Environment that naming and shaming policies - publishing the details of those convicted of littering offences - would be in breach of the law. Where other bodies publish details of wrongdoing - such as the Revenue defaulters' list - there is a specific legal basis for doing so.
The council appears to have forgotten this guidance in publishing images of people who have not even been charged with any crime, much less actually convicted. Of course there will be little public sympathy for those pictured illegally dumping. But the experience of shaming campaigns in other countries is that innocent people are sometimes wrongfully accused as well.
This is a real risk in the current council scheme, where the spot covered by CCTV can legitimately be used for tagged waste collection on Thursday mornings. Putting up the wrong image is likely to result in an expensive defamation action against the council.
Quite apart from these issues, the decision to use the poster is an admission that the current powers to deal with illegal dumping are not working and we should ask why that is. Does the council have enough litter wardens?
Is the level of litter fines high enough? In 2014, just one-third of litter fines were paid - does the council have adequate resources to follow these up in court? Are prosecutions failing - and if so, can anything be done to make them easier to bring? While using CCTV images to shame litter louts might appear to be a quick fix, it can also be a distraction from the underlying problems.
Dr TJ McIntyre is a lecturer in the UCD Sutherland School of Law and chair of Digital Rights Ireland