Technology is 'racing ahead of privacy law'

BY COLIN ESPINER

Spying on your partner or monitoring the movements of employees could soon be illegal.

A review by the Law Commission of the country's privacy laws says legislation should be enacted making it illegal to install tracking devices on cellphones or vehicles, or to use visual surveillance devices without consent.

The report says surveillance technology is developing at great speed, and its potential is "virtually limitless". The law had not kept pace with technology.

"It is important to put boundaries in place to control its harmful use before it is too late."

The report is the latest in a series of reports on privacy issues by the Law Commission.

Justice Minister Simon Power is refusing to comment on whether any of the report's recommendations will be accepted. A spokesman said yesterday that he would not respond until the final report was released next week.

Currently it is not against the law for a suspicious partner to download and install GPS tracking information onto a cellphone, or for a journalist to install a hidden audio recording device on a car.

Employers can also monitor the movements of staff through trackers on fleet vehicles without employees' knowledge.

Under the changes, if accepted by the Government, employers would have to gain the consent of staff for the tracking of people, although not for freight.

Employers would still be able to use hidden cameras to detect workplace theft, however, and the Law Commission says consumer affairs programmes such as Target should still be able to use covert filming to catch out errant tradespeople – as long as they have the permission of the occupier.

Exemptions would be made for police, or where people agreed to being tracked, such as via social networking sites or mobile phone software.

The commission says CCTV surveillance should not be outlawed as it provides a public safety service, but should be better regulated by the Privacy Act.

Peeping toms would also be caught under proposed new laws on voyeurism. The commission says while intimate covert filming is already illegal, the law was vague on spying on people in "intimate situations" – such as having sex, showering, or going to the toilet.

It proposes a new crime of deliberately observing, without consent, with our without a device, people in such situations, where they would reasonably expect privacy.

The recommendation is in response to a spate of instances where men had barricaded themselves in women's toilets and spied on them through peepholes, the commission said.

The review also recommends new restrictions on news media and photographers using a telephoto lens to photograph inside a dwelling, even from the street, or to take pictures of people inside hotels, hospitals or inside a marae without consent.

The commission says the restrictions should not apply to people photographed in their garden or on a balcony, or shops, offices, or schools.

The Law Commission is also proposing a change to the harassment law so that celebrities could take out restraining orders against news media if they felt they were being harassed.

Existing media freedoms to record and intercept telephone conversations or data where it is in the public interest should be preserved, the commission says.

It also says that restrictions preventing private investigators from photographing people on a public street or recording their conversations should be dropped.

RECOMMENDED CHANGES

New Surveillance Devices Act, making use of visual surveillance, tracking and interception without permission a criminal offence.

Observing people naked, on the toilet or showering.

Watching people – without consent and for the purposes of sexual gratification – having sex should be illegal.

Courts should be able to grant restraining orders under the Harassment Act to stop surveillance causing distress.

Recording conversations or intercepting private data for legitimate purposes including investigative journalism should remain lawful.

No change to the laws governing filming or use of CCTV in public places.

- © Fairfax NZ News