Source of an illustrative Picture: Lusaka Telecom Solutions-Property Zambia
…CCTV CAMERAS TO BE REGULATED IF THE LAW IS PASSED
By Inutu Akolwa, Yamikani Ngoma and Mwila Chikwanda
ON 22nd December, 2021, the Zambia Law Development Commission (ZLDC) handed over the draft Closed-Circuit Television Public Protection Bill and Project Report to the Minister of Home Affairs and Internal Security Hon. Jack Mwiimbu,MP. The Minister tasked the relevant authorities to ensure that businesses that use Closed Circuit Television –(CCTV) do not infringe on the rights of the citizenry.[1]
The Minister affirmed that the focus of the draft Bill was to protect and respect fundamental human rights in the use of CCTV. Hon. Mwiimbu assured the public that Members of Parliament would also make this the priority in debating the Bill and enacting.
The process to develop the Closed-Circuit Television Public Protection Bill was conceived by a need identified by the Government to employ all necessary measures to ensure that the rise in the use of technology-based interventions, in security provision, does not compromise the enjoyment of fundamental human rights in the country. It is against this backdrop that Cabinet approved in principle the introduction of a Bill for the regulation of the use of CCTV in public spaces and private spaces accessible to the public.
The Ministry of Home Affairs and Internal Security engaged the Zambia Law Development Commission in 2020 to develop a legislative framework. The development of the framework was meant ensure clarity and certainty in the use of CCTV and also to provide for uniformity of rights and obligations, and to provide redress where rights are violated.
In this article we define in broad terms what CCTV is. The advantages and disadvantages of the use of CCTV are also briefly discussed. Selected findings from a comparative analysis of legislation from other jurisdictions speaking to the subject matter are presented. This is followed by a detailed discussion on the justification for the development of a law, an outline of the methodology engaged in the law development process and highlights of the salient provisions of the law. In ending the article, the way forward is charted in regard to the processes leading to passing of the draft Bill into Law by Parliament.
CCTV is a TV system in which signals are not publicly distributed but are monitored, primarily for surveillance and security purposes. CCTV relies on strategic placement of cameras, and observation of the camera’s input on monitors remotely. Since the cameras communicate with monitors and/or video recorders across private coaxial cable runs or wireless communication links, they gain the designation “closed-circuit” to indicate that access to their content is limited by design only to those able to see it.[2]
The use of CCTV has gained high importance in numerous sectors due to its efficiency and working benefits. Some of the advantages of the use of CCTV are highlighted below.
Criminal activities can be detected and prevented by the real time alarms generated by CCTV. Offenders can be identified from the footage and be brought to book in the same vein, the footage is also an important source of evidence to solve cases. The presence of such cameras further serves as a deterrent to would be offenders as areas under surveillance cameras become no go zones.
CCTV is not only important for fighting criminal activity but also improves public safety situations. These can be analysed on time and necessary actions can be taken by help of surveillance. Traffic can be controlled as road users will be aware that they are under surveillance and will have to comply with traffic rules and regulations at all times. Where road users decide to disregard regulations and rules, footage can be used to establish their guilt and to guide on an appropriate punishment.
The use of CCTV further creates a sense of security in the public as they are assured they are being watched over and can be protected from unforeseeable harm.
However, the use of CCTV also comes with some disadvantages and not all experiences from its use have been positive. Some disadvantages identified include:
- concerns on breach of privacy in situations where footage has been used by some unscrupulous people;
- CCTV systems maybe vulnerable to hacking
- having actual footage does not stop the commission of crime in some instances.
- positioning of the CCTV Equipment in some cases results in violation of the right to privacy
- public notice of presence of CCTV at public premises:
- limitations on the use of the surveillance equipment
- legal disclosure of recorded material.
Despite the weaknesses identified above, the use of CCTV continues, some jurisdictions have gone a step further by enacting legislation to regulate the use of CCTV specifically to address some of the aforesaid weaknesses.[3] The enactment of specific legislation is an indicator that the advantages of the use of CCTV outweigh the disadvantages or weaknesses in the use of CCTV.
South Africa, enacted the Protection of Personal Information Act of 2013. This Act promotes the protection of personal information processed by both public and private bodies and introduces certain conditions so as to establish minimum requirements for the processing of personal information. Kenya also developed the Data Protection Act No. 24 of 2019 which provides for the regulation of the processing of personal data, rights of data subjects and obligations of data controllers and processors.
CCTV use in the United Kingdom is governed by the Data protection Act of 2018 which provides for the regulation of the processing of information relating to individuals. The Surveillance Camera Code supplements the Act as far as surveillance cameras are concerned. This code provides guidance on the use of surveillance camera systems but does not replace or remove any statutory obligations on operators or users of such systems to comply with the provisions of the Act. In Belgium, the Surveillance Camera Act of 2007 makes provision for governing the installation and the use of surveillance cameras with the purpose of monitoring and supervising specified areas.
The common thread in all the Acts stated above is that the regulation of the use of the Closed-Circuit Television cameras is restricted to public spaces and private spaces accessible to the public. In order to create a distinction between the public space and the private space, the above laws have defined the terms private space, public space, private space accessible to the public and a CCTV owner operating in a private space in the interpretation section. This is in order to identify persons that will be regulated under the said Acts.
The above distinction, ensures that owners of CCTV operating in public spaces or private spaces accessible to the public are subjected to the laws governing the operation of CCTV’s thereby protecting the unlawful processing of personal data and rein-enforces the need for national security and public safety. Subsequently the said Acts provides for offences relating to unlawful disclosure of CCTV footage and also provides for guidelines on the proper use of CCTV footage by CCTV users.
It is observed that CCTV owners infringe people’s rights by capturing images without a notice to the public or people in the footage. In order to avert this problem, the UK Surveillance Camera Code of Practice requires CCTV owners to place a notice at each entrance of a public space or private space accessible to the public indicating that there is a CCTV camera.
Further to the above, it is observed that certain CCTV equipment are inappropriately installed capturing images beyond their parameters without the consent of other persons whose premises or images are captured. Therefore, there is a need to provide guidelines on the installation of CCTV’s and prosecute those that do not adhere to the said guidelines.
In order to address the problem above, in Article 3 of the Surveillance Camera Act of 2007 Belgium provides for the purpose of the Act which is to govern the installation and use of surveillance cameras with the purpose of monitoring and supervising the specified areas. This provision enables the relevant authorities to set standards for the CCTV installation and regulate the manner of installation of a CCTV.
With regard to unlawful disclosure, it was observed that there was a tendency by CCTV owners to disclose personal data collected from CCTV footage without the consent of the person whose image is captured. This amounts to infringement of the privacy of the person captured. In order to address this problem, jurisdictions such as Kenya in section 72 of its Data Protection Act provides for offences for unlawful disclosure of personal information. It further provides for guidelines on the processing of personal data.
The need to regulate CCTV posed a challenge of identifying the relevant institution that will be responsible for administering the CCTV Act. The need to balance the independency of the institution which is to administer the Act against the need to place such a responsibility with the primary mandate of the regulatory body responsible for prevention of abuse, violation of privacy and compromise of National Security arose.
The laws considered in the comparative analysis envisage the establishment of an authority that is responsible for administering the Acts. These provisions provided guidance on the establishment of the authority. In Kenya, The Data Protection Act, No 24 of 2019 establishes an office of the Data Protection Commissioner which is be a body corporate responsible for the implementation of the said Act. Section 39 of the Protection of Personal Information Act of South Africa provides for the establishment of a juristic person to be known as the Information Regulator.
The findings from the preliminary research done by ZLDC and a brainstorming session affirmed that it is indeed necessary to develop a law as proposed by the Ministry of Home Affairs and Internal Security, for the regulation of the use of CCTV in public spaces as well as in private spaces accessible to the public in order to provide for a legal framework to prevent abuse, violation of privacy and compromise of national security.
Currently Zambia has s no legal framework to regulate the use of CCTV. Individuals and business houses are increasingly taking up the use of CCTVs. They are however, doing so without any regulations to govern its use. This state of affairs is bound to pose national security problems and invasion of individual privacy. As discussed above numerous countries have established public surveillance system which has greatly assisted in reducing crime and prosecuting offenders, in addition, Law Enforcement Agencies have leveraged on footage from the CCTV installed on private premises in their investigations. Therefore, installation of CCTV on private spaces accessible to the public and public spaces in Zambia should be encouraged and supported with a comprehensive legal framework to prevent abuse, violation of privacy and compromise of National Security.
In order to develop the draft Bill, the Commission used the qualitative method of data collection and analysis. This included a brainstorming session, desk-study, and focus group discussions in form of a consultative meetings. The final outputs of this process was a draft Bill and accompanying report.
Some of the salient features of the Bill are:
Establishment of the centre
It was observed that there should be an independent Centre that will ensure implementation of the Act. Therefore, the proposed legislation establishes the National Command Centre under the Ministry responsible for national security and which shall be under the control and supervision of the Minister responsible for internal security.
Composition of the National Command Center Committee
It was observed that the National Command Centre Committee needs to have representation from both government and neutral institutions. It was noted that considering the sensitive nature of work of the Committee, it will not be appropriate for civilians to sit on a committee which is responsible for National security, therefore the Human Rights Commission will provide adequate representation for neutral bodies on the Committee. However, to provide a system for checks and control, civil society may sit in sub non-sensitive committees. Following the above, the proposed legislation provides for the composition of a lean structure having 9 members as recommended by Government to reduce operational costs.
Prohibition of use of CCTV in a public space without a license
It was observed that there is need to regulate CCTV owners who install and operate CCTVs in public spaces, there is a need to provide provisions on the installation of CCTV’ and prohibit any person to operate a CCTV in a public space without a licence.
Rights of Data Subject
It was observed that data subjects should have the right to their personal information so that their rights are not violated and to promote confidentiality. Therefore, the proposed legislation provides for the rights and duties of a Data subject.
The Use of Covert Cameras
It was observed that some public spaces and private spaces accessible to the public use covert cameras in private areas such as change rooms and public rests rooms.
The Proposed legislation prohibits the use of the covert cameras in public spaces and private spaces accessible to the public. However, it gives exception in places where there is public notice that a covert camera has been installed in that space and where there are lawful criminal investigations.
Public Notice of Installed CCTV
It was observed that CCTV owners infringe people’s rights by capturing images without a notice to the public or people in the footage, Therefore the proposed legislation provides that CCTV owners should place a notice at each entrance of a public space or private space accessible to the public indicating that there is a CCTV camera
Unlawful disclosure
It was observed that there is need to prohibit the disclosure of content or nature of any personal data that has been collected so as to protect personal information and confidentiality of the data subject. Therefore, the proposed legislation provides for guidelines on the proper use of CCTV footage by CCTV users and prohibits unlawful disclosure of personal data.
Limitations on the Use of the CCTV Equipment:
It was observed that some institutions, lodges, hotels and shopping malls install CCTV cameras in private areas such as change rooms, public rest rooms and others install CCTV systems that capture audio recording, facial recognition and other biometric characteristic recognition. Therefore, the proposed legislation prohibits then installation and use of CCTVs in this manner.
WAYFORWARD
The Commission having officially handed over the draft Bill and accompanying project report to the Ministry of Home Affairs and Internal Security, it is expected that following internal processes the draft Bill shall be submitted, for finalisation, to the Ministry of Justice and ultimately conveyed to Parliament for enactment into law. This will enhance national security while respecting the fundamental rights and freedoms such as the right to privacy.
References
[1] GOVT ADOPTING TECH TO PROTECT CITIZENS ~ (znbc.co.zm) accessed on 21/01/2022
[2] Techtargent Network https://whatis.techtarget.com/definition/CCTV-closed-circuit-television accessed 3/27/2020
[3] See countries discussed below in findings of the comparative analysis