Your company installed video surveillance equipment. You’re the boss. One day, you see an employee knocking off early. You intend to discipline that employee using video evidence.
Lawyer Mark Hayes thinks that’s a bad move.
As a partner at Hayes eLaw LLP, Hayes handles privacy and data protection matters. When clients who install surveillance video systems for one purpose want to use it for another, he tells them such use isn’t always legally tenable. “We’ve had to advise clients they can’t use it ‘going backwards,’” he said.
Hayes lists three common justifications for security video systems:
- employee monitoring
- security monitoring
- customer monitoring
There are “flavours of each type,” he said. “Different uses have different rules and different risks.”
“Surveillance devices can record lots more than what they ‘should’ record,” Hayes added. “Don’t let surveillance bleed into unjustifiable uses.”
Elliott Goldstein recommends organizations create PIPEDA-compliant policies to guide collection, retrieval and usage of surveillance video. He finds that most video-related problems happen because organizations don’t have explicit surveillance video policies that employees know about. “Without this, everybody does what they want,” said the lawyer and consultant to the alarm and security industries.
Consider the guidelines mentioned here when you draft your organization’s policies.
Leave video to the professionals
Goldstein recalls an incident when a retail employee filmed a suspected shoplifter using a mobile phone instead of calling security. Other people were recorded, no evidence of shoplifting surfaced and the incident caused a stir. “Use professionals to handle surveillance,” Goldstein advised.
Handling copies of video
Should video review prove necessary, Goldstein advised making copies of the video segment and storing them properly, “not in the glove compartment of the boss’s car,” in order to both preserve chain of custody and to preserve the original video file.
Log viewings
Keep a log of surveillance video viewings. The log should include, at minimum:
- the nature of the incident
- the date, time and duration of the event reviewed
- the date and time when the video was watched
- names of the people who saw the video
- why each person saw the video
“If the question of excessive access arises later, good documentation helps you defend yourself,” Hayes said.
Limit access to surveillance video
Goldstein said few people ought to see all footage. He included the president and legal counsel in that category. Everybody else ought to view footage on a “need to know” basis. This guideline prevents excessive dissemination of video, which can cause problems.
He also pointed out that certain websites actively solicit “America’s Funniest Videos” and people respond even if they don’t have the right to submit such video. “Just because you own the equipment, that doesn’t mean you can humiliate somebody,” he said, adding that certain such instances constitute libel.
Keep surveillance video as long as you need to, and no longer
The length of time an organization must keep archives depends on factors like the purpose for collecting footage and any statutory or legal requirements. That said, Hayes recommended organizations “destroy it as soon as legal requirements are met.”
Goldstein advised setting a minimum archive period at the length of a jurisdiction’s limitation period “plus a day.”
Evaluate reasonableness of surveillance video
Hayes offered a guiding principle to his clients: “If you’re thinking about whether you can do something, you’re probably offside,” he said. “A regulator may see it as unreasonable.”
To determine reasonableness, consider factors like:
- justification for surveillance video gathering and usage
- notice you provide to people you surveil
- consent you get from people you surveil
Educate staff
Both Hayes and Goldstein forcefully emphasized this last tip. “Education is the biggest thing, to recognize when there are privacy implications,” Hayes said.
“It’s not enough to put in equipment,” he added. “You must train people on the rules and regulations. People who request video must know them too.”
Evolution of video surveillance policy
Any policies you draft today will soon require revision. For one thing, technology continues its inexorable advance.
Also, society seems to welcome Orwellian surveillance for various reasons. Cameras and listening devices are easier than ever to install, even in homes. People buy Internet-connected devices, like smart assistants, televisions and children’s toys, that listen to everything going on around them at all times, not just when they’re spoken to. Cell phones, car dashboards and police vests all support mobile video capture. How does general counsel handle the presence of such objects in the workplace?
Goldstein noted new “smart” technologies like facial recognition software and video analytics that contribute to systems dubbed “artificially intelligent.”
He begs to differ.
“Machines don’t understand the law,” he said. For instance, no organization should surveil people in the act of disrobing or attending to matters of personal hygiene. “Computers don’t understand things like that.”
This article originally appeared on The Lawyer’s Daily website, published by LexisNexis Canada Inc.