Last week saw the UK launch of Google's Street View service, the Google Maps tool that currently allows users to search locations in 25 UK cities and towns and browse 360-degree street-level views. Google has spent over a year capturing its Street View images using customised camera cars, covering a distance of more than 22,000 miles. Despite using recognition software to blur registration plates and the faces of those captured on Street View, the press has reported that the technology has not worked in all cases and that Google has had to remove hundreds of images following complaints from those individuals who are identifiable. The Information Commissioner's Office ("ICO"), the UK data protection authority, has been called upon by privacy campaigner Privacy International, to take action against Google under the Data Protection Act 1998.
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Last week saw the UK launch of Google's Street View service, the Google Maps tool that currently allows users to search locations in 25 UK cities and towns and browse 360-degree street-level views. Google has spent over a year capturing its Street View images using customised camera cars, covering a distance of more than 22,000 miles. Despite using recognition software to blur registration plates and the faces of those captured on Street View, the press has reported that the technology has not worked in all cases and that Google has had to remove hundreds of images following complaints from those individuals who are identifiable. The Information Commissioner's Office ("ICO"), the UK data protection authority, has been called upon by privacy campaigner Privacy International, to take action against Google under the Data Protection Act 1998.
The Data Protection Act 1998
The Data Protection Act 1998 ("DPA") regulates the processing of personal data (information relating to a living individual from which that individual can be identified) including the obtaining, holding, use or disclosure of such personal data. The ICO has confirmed that the image of a living individual or information derived from such an image that identifies the individual, can be classed as personal data and may therefore fall within the scope of the DPA. Organisations recording, using and storing such images are required to comply with the eight data protection principles set out in the DPA. The DPA also gives individuals who are the subject of the personal data, certain rights, including the right to claim compensation from an organisation for any damage and distress suffered by the individual by reason of the organisation's contravention of any of the DPA's requirements.
Consultation with the ICO
In view of the clear potential for Google's Street View images to constitute personal data and therefore fall within the scope of the DPA, Google consulted the Information Commissioner's Office ("ICO") in 2008 to discuss the steps it would take to address privacy concerns. The ICO released a statement on 17 July 2008 that it was satisfied that Google 'was putting in place adequate safeguards to avoid any risk to the privacy or safety of individuals, including the blurring of vehicle registration marks and the faces of anyone included in Streetview images'.
Following the launch of Street View, the ICO released a statement on 20 March 2009 re-iterating it's earlier statement:
'The ICO is satisfied that Google is putting in place adequate safeguards to minimise any risk to the privacy or safety of individuals with the UK launch of the Google Streetview service. They are committed to ensuring all vehicle registration marks and the faces of anyone included in Streetview images will be blurred. Any individual who feels that an image does identify them and is unhappy with this can use the contact details on the photograph page itself to contact Google and get it removed. They can also contact Google this way to raise more general concerns or provide feedback. Because there is a significant delay between taking an image and its publication, images will not reveal an individual's current whereabouts. Individuals who have raised concerns with Google about their image being included and who do not think they have received a satisfactory response can raise that concern with the ICO.'
Adequate safeguards
In the days since Street View's launch, the press has reported that the measures Google has put in place to protect the privacy of individuals captured on Street View have not been as effective as promised and that hundreds of people have used the 'Report a Problem' function on the site to request that images of faces, houses, cars or car registration plates that are identifiable are either blurred or removed. There have been reports that the images removed so far by Google include a naked child, a man being arrested and a man vomiting in the street. Whilst it is not possible to reveal an individual's current whereabouts from Street View images, critics have argued that there is still great scope for causing damage and distress to those individuals who are identifiable.
Privacy International's complaint to the ICO
Following Street View's launch and the press coverage that followed, Privacy International made a written complaint to the ICO on 23 March 2009. The basis of the complaint is that Google's promised safeguards to prevent personal data being captured and used on Street View have not been adequate. The main argument is that Google's capture, use and storage of these images amounts to the processing of personal data under the DPA and Google should therefore be required to comply with the data protection requirements set out in the DPA's eight data protection principles.
The first principle of the DPA provides that personal data should be processed fairly and lawfully, requiring Google to notify individuals beforehand that they are capturing their image, the purpose for which they will use the image and any other information necessary, having regard to the specific circumstances in which the image is being captured or used, to enable the processing of that individual's image to be fair. However, fair processing information need not be provided where to do so would involve a disproportionate effort. Fair and lawful processing also requires that certain conditions are met, one of which could be obtaining the consent of the individual before capturing their image.
It was always going to be difficult for Google to adhere to the requirements of the first DPA principle in implementing Street View and had the ICO decided upon a literal interpretation of the DPA requirements, Google's Street View initiative could have been defeated at the outset. Instead it seems the ICO has taken a pragmatic approach to Street View in an attempt to strike a balance between the competing interests of data protection and benefits that could be obtained from the Street View service, including the provision of a valuable tool for the tourism and real estate industries. It is this pragmatic approach, however, that concerns Privacy International on the basis that it may set a precedent for commercial organisations to be permitted to collect and use personal data without providing fair processing information or obtaining the consent of the individuals concerned.
Where do we go from here?
It will be interesting to see how the ICO responds to Privacy International's complaint against Google and the complaints made by those objecting to being identified on Street View. It seems that there is some way to go before Google's recognition software can be fully relied upon to protect the identity of individuals captured on Street View. This will be a challenge for Google if it continues to capture footage to both update its Street View images and roll the service out to the rest of the UK, with no practical way to quality check camera footage covering over 22,000 miles of UK roads. It remains to be seen what position the ICO will take in light of this and indeed whether the new Information Commissioner, Christopher Graham, replacing Richard Thomas in June 2009, will share a similarly pragmatic approach adopted by the ICO to date.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 30/03/2009.
