Might dashcams soon become restricted in Ireland? Are angry cyclists who post videos online of errant car behaviour flagrantly disregarding others' rights? On one reading of the current law, the answer to both questions is yes.
Dashcams and bike cameras now record in 4K super-high definition. Passers-by in the published videos are not just vaguely recognisable but can be (and sometimes are) turned into memes and gifs if their clothing, appearance or expression tickles our fancy.
Moreover, the European Court of Justice has signalled (in the Rynes case) that you can't just record a public street - let alone post it online - if you don't let everyone know you're doing so and give them a chance to either review the footage or exercise other controls over their personal images.
"To the extent that video surveillance… covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely 'personal or household' activity," said the European Court in the Rynes ruling.
That case was about CCTV. But in a recent commentary on the topic, the Irish Data Protection Commissioner (DPC) said that the same principles likely apply to dashcams and GoPros.
"Although this case related to a fixed CCTV system, it is still helpful in deciding whether the exemption applies in cases where individuals are using other types of video recording equipment, such as dashcams or 'action cams'," her office said.
In other words, it is at least possible, and even likely, that thousands of Irish motorists are using dashcams illegally.
No one really wants to take this question on. I asked Helen Dixon (the Irish DPC) about it a week ago in an interview.
I'm guessing that she's a little tired of me bringing stuff like this up. I'm forever haranguing her office about photography and videography issues.
I was the one banging on about bishops telling congregations that no one was allowed to take a phone snap at a communion "because of GDPR".
(And I was grateful to the DPC's office for then issuing a statement confirming that it isn't against GDPR.)
So I accept that I'm half a yard away from being a nerdish crank on the issue. But here's the thing: cameraphones and high-definition cameras are changing society's rules. They're profoundly changing the way we interact with each other and how we think of ourselves.
It's not just the 4K (and now 8K) video cameras on our new phones. It's the Amazon Ring doorbells and Nest security cameras we're now starting to put in our homes. And the high-definition dashcams we use when travelling. Some people are even starting to use personal, discrete bodycams "for security".
It never really mattered with previous generations of dashcams or GoPros whether they caught a few random faces as they recorded their footage. The resolution was simply too basic.
It's a very big difference today. The newest smartphone I'm reviewing (Samsung's Galaxy S20 Ultra) records video in 8K. For non-nerds, that means it has 16 times the resolution of 'full HD' (otherwise known as 4K). What that really means is that anything it captured can be sliced up into tiny parts, where those parts are still very usable as separate video bits in themselves.
Now take a step back. What happens when video of people becomes usable? It gets used. As a meme, as a gif, as a TikTok short, as whatever. Not all the time and not everyone. But way more than previously shot video that's blurry, pixellated or low-resolution.
What rights do the people who are now captured in ultra-high resolution and later used in online videos have?
Ask a data protection regulator or consultant and they will reel off all of the statutory protections and GDPR articles that apply. Except how many of these protections really apply if the person being recorded doesn't know they're being recorded or doesn't see the published video, either before they're recognised by others or ever?
In this situation, they don't actually have rights that are properly backed up in any meaningful, systematic way.
The DPC is taking action on some parts of this issue. For example, she has been active on the matter of garda bodycams and about that recording activity staying proportionate.
But we're now getting to a tipping point where the use of small, powerful cameras is becoming a mass-market feature for convenience and security.
Tens of thousands of Irish motorists use dashcams for the security of their vehicles. Thousands of cyclists use high-definition video cameras on their helmets or bikes. Their reasons for doing so are understandable and justifiable. But it's starting to look like they're on the wrong side of the law.
Dixon says that the DPC can't be the catch-all arbiter for use of new tech. She also says that this may be a case where it takes a specific complaint or a court case to flesh out a clearer precedent.
But she agrees that those that record indiscriminately in public areas, where others are clearly identifiable within the footage, make their users 'data controllers' with extra responsibilities - such as indicating that they're recording and being amenable to show anyone recorded the footage (and granting them a request to delete it).
Once again, for those who say 'it was ever thus as long as Facebook and YouTube and Twitter and cameraphones have been with us', no it wasn't.
Smartphones 10 years ago didn't have cameras good enough to reproduce video in any reasonable video resolution form in the hands of a novice user. And certainly not from a car or a bicycle.
Now we're talking about something altogether different. If we're serious about defending people's right to enforcing their own privacy, this is going to come to a head soon.
Sunday Indo Business