Initial Email from Me to Privacy Commission
Hi there,
I was wondering if you could please help me. I have done a bit of reading about the laws relating to privacy issues but have some questions relating to some more specific issues and am wondering if you might be able to help me answer them.
I was wondering:
Is it illegal for someone to record (audio and visual) someone's actions on private property from off of the property? For example a neighbour recording another neighbour. In this case the person being recorded does not own the property but does pay rent to live there. The activities are general activities around the house. I am aware that the recording of intimate situations is illegal.
Do the legalities behind this change if the recordings were then broadcast to a private group of people across the internet.
Does it matter if the internet site is distributing the recordings is located in New Zealand or overseas?
Are there some recording devices that are illegal? For example devices that are intended to listen from afar i.e. not within earshot, or camera's that are hidden, or infrared camera's.
Your help answering these questions would be much appreciated.
Thanks!
Jamie Connor
Response from Privacy Commission to Me
Jamie,
Collecting personal information about individuals, even when collected
by recording equipment is subject to the Privacy Act.
A neighbour who collects information by the use of a camera, is
generally not restricted from making the collection if the information
collected is related that person's own personal our household affairs,
An example being security cameras.
Any other collection would need to be compliant with principle 3 below.
When it comes to recording a conversation, that may be an issue under
the Crimes Act, s216 if the person making the voice recording is not
actually a party to the conversation.
If the person is party to the conversation then the collection is
generally not in breach of the Act if the collection is not unfair under
the circumstances.
As you mention care has to be taken not to record intimate situations.
Any disclosure of the information would again be governed by the
original purpose of the collection. If the collection was not related to
the recorders own personal household affairs the disclosure would need
to be considered under principle 11, see below.
I trust this is useful, But contact me again if you need to discuss
further.
Regards
Fred Henderson
Enquiries Officer.
PRINCIPLE 1
Purpose of collection of personal information
Personal information shall not be collected by any agency unless -
(a) The information is collected for a lawful purpose connected with
a function or activity of the agency; and
(b) The collection of the information is necessary for that purpose.
PRINCIPLE 2
Source of personal information
(1) Where an agency collects personal information, the agency shall
collect the information directly from the individual concerned.
(2) It is not necessary for an agency to comply with subclause (1)
of this principle if the agency believes, on reasonable grounds -
(a) That the information is publicly available information; or
(b) That the individual concerned authorises collection of the
information from someone else; or
(c) That non-compliance would not prejudice the interests of the
individual concerned; or
(d) That non-compliance is necessary -
(i) To avoid prejudice to the maintenance of the law by any public
sector agency, including the prevention, detection, investigation,
prosecution, and punishment of offences; or
(ii) For the enforcement of a law imposing a pecuniary penalty; or
(iii) For the protection of the public revenue; or
(iv) For the conduct of proceedings before any court or tribunal
(being proceedings that have been commenced or are reasonably in
contemplation); or
(e) That compliance would prejudice the purposes of the collection;
or
(f) That compliance is not reasonably practicable in the
circumstances of the particular case; or
(g) That the information -
(i) Will not be used in a form in which the individual concerned is
identified; or
(ii) Will be used for statistical or research purposes and will not
be published in a form that could reasonably be expected to identify the
individual concerned; or
(h) That the collection of the information is in accordance with an
authority granted under section 54 of this Act.
PRINCIPLE 3
Collection of information from subject
(1) Where an agency collects personal information directly from the
individual concerned, the agency shall take such steps (if any) as are,
in the circumstances, reasonable to ensure that the individual concerned
is aware of -
(a) The fact that the information is being collected; and
(b) The purpose for which the information is being collected; and
(c) The intended recipients of the information; and
(d) The name and address of -
(i) The agency that is collecting the information; and
(ii) The agency that will hold the information; and
(e) If the collection of the information
is authorised or required by or under law -
(i) The particular law by or under which the collection of the
information is so authorised or required; and
(ii) Whether or not the supply of the information by that individual
is voluntary or mandatory; and
(f) The consequences (if any) for that individual if all or any part
of the requested information is not provided; and
(g) The rights of access to, and correction of, personal information
provided by these principles.
(2) The steps referred to in subclause (1) of this principle shall
be taken before the information is collected or, if that is not
practicable, as soon as practicable after the information is collected.
(3) An agency is not required to take the steps referred to in
subclause (1) of this principle in relation to the collection of
information from an individual if that agency has taken those steps in
relation to the collection, from the individual, of the same information
or information of the same kind, on a recent previous occasion.
(4) It is not necessary for an agency to comply with subclause (1)
of this principle if the agency believes, on reasonable grounds -
(a) That non-compliance is authorised by the individual concerned;
or
(b) That non-compliance would not prejudice the interests of the
individual concerned; or
(c) The non-compliance is necessary -
(i) To avoid prejudice to the maintenance of the law by any public
sector agency, including the prevention, detection, investigation,
prosecution, and punishment of offences; or
(ii) For the enforcement of a law imposing a pecuniary penalty; or
(iii) For the protection of the public revenue; or
(iv) For the conduct of proceedings before any court or tribunal
(being proceedings that have been commenced or are reasonably in
contemplation); or
(d) That compliance would prejudice the purposes of the collection;
or
(e) That compliance is not reasonably practicable in the
circumstances of the particular case; or
(f) That the information -
(i) Will not be used in a form in which the individual concerned is
identified; or
(ii) Will be used for statistical or research purposes and will not
be published in a form that could reasonably be expected to identify the
individual concerned.
PRINCIPLE 4
Manner of collection of personal information
Personal information shall not be collected by an agency -
(a) By unlawful means; or
(b) By means that, in the circumstances of the case -
(i) Are unfair; or
(ii) Intrude to an unreasonable extent upon the personal affairs of
the individual concerned.
PRINCIPLE 5
Storage and security of personal information
An agency that holds personal information shall ensure -
(a) That the information is protected, by such security safeguards
as it is reasonable in the circumstances to take, against -
(i) Loss; and
(ii) Access, use, modification, or disclosure, except with the
authority of the agency that holds the information; and
(iii) Other misuse; and
(b) That if it is necessary for the information to be given to a
person in connection with the provision of a service to the agency,
everything reasonably within the power of the agency is done to prevent
unauthorised use or unauthorised disclosure of the information.
PRINCIPLE 6
Access to personal information
(1) Where an agency holds personal information in such a way that it
can readily be retrieved, the individual concerned shall be entitled -
(a) To obtain from the agency confirmation of whether or not the
agency holds such personal information; and
(b) To have access to that information.
(2) Where, in accordance with subclause (1)(b) of this principle, an
individual is given access to personal information, the individual shall
be advised that, under principle 7, the individual may request the
correction of that information.
(3) The application of this principle is subject to the provisions
of Parts IV and V of this Act.
PRINCIPLE 7
Correction of personal information
(1) Where an agency holds personal information, the individual
concerned shall be entitled -
(a) To request correction of the information; and
(b) To request that there be attached to the information a statement
of the correction sought but not made.
(2) An agency that holds personal information shall, if so requested
by the individual concerned or on its own initiative, take such steps
(if any) to correct that information as are, in the circumstances,
reasonable to ensure that, having regard to the purposes for which the
information may lawfully be used, the information is accurate, up to
date, complete, and not misleading.
(3) Where an agency that holds personal information is not willing
to correct that information in accordance with a request by the
individual concerned, the agency shall, if so requested by the
individual concerned, take such steps (if any) as are reasonable in the
circumstances to attach to the information, in such a manner that it
will always be read with the information, any statement provided by that
individual of the correction sought.
(4) Where the agency has taken steps under subclause (2) or
subclause (3) of this principle, the agency shall, if reasonably
practicable, inform each person or body or agency to whom the personal
information has been disclosed of those steps.
(5) Where an agency receives a request made pursuant to subclause
(1) of this principle, the agency shall inform the individual concerned
of the action taken as a result of the request.
PRINCIPLE 8
Accuracy, etc, of personal information to be checked before use
An agency that holds personal information shall not use that information
without taking such steps (if any) as are, in the circumstances,
reasonable to ensure that, having regard to the purpose for which the
information is proposed to be used, the information is accurate, up to
date, complete, relevant, and not misleading.
PRINCIPLE 9
Agency not to keep personal information for longer than necessary
An agency that holds personal information shall not keep that
information for longer than is required for the purposes for which the
information may lawfully be used.
PRINCIPLE 10
Limits on use of personal information
An agency that holds personal information that was obtained in
connection with one purpose shall not use the information for any other
purpose unless that agency believes, on reasonable grounds -
(a) That the source of the information is a publicly available
publication; or
(b) That the use of the information for that other purpose is
authorised by the individual concerned; or
(c) That non-compliance is necessary -
(i) To avoid prejudice to the maintenance of the law by any public
sector agency, including the prevention, detection, investigation,
prosecution, and punishment of offences; or
(ii) For the enforcement of a law imposing a pecuniary penalty; or
(iii) For the protection of the public revenue; or
(iv) For the conduct of proceedings before any court or tribunal
(being proceedings that have been commenced or are reasonably in
contemplation); or
(d) That the use of the information for that other purpose is
necessary to prevent or lessen a serious and imminent threat to -
(i) Public health or public safety; or
(ii) The life or health of the individual concerned or another
individual; or
(e) That the purpose for which the information is used is directly
related to the purpose in connection with which the information was
obtained; or
(f) That the information -
(i) Is used in a form in which the individual concerned is not
identified; or
(ii) Is used for statistical or research purposes and will not be
published in a form that could reasonably be expected to identify the
individual concerned; or
(g) That the use of the information is in accordance with an
authority granted under section 54 of this Act.
PRINCIPLE 11
Limits on disclosure of personal information
An agency that holds personal information shall not disclose the
information to a person or body or agency unless the agency believes, on
reasonable grounds -
(a) That the disclosure of the information is one of the purposes in
connection with which the information was obtained or is directly
related to the purposes in connection with which the information was
obtained; or
(b) That the source of the information is a publicly available
publication; or
(c) That the disclosure is to the individual concerned; or
(d) That the disclosure is authorised by the individual concerned;
or
(e) That non-compliance is necessary -
(i) To avoid prejudice to the maintenance of the law by any public
sector agency, including the prevention, detection, investigation,
prosecution, and punishment of offences; or
(ii) For the enforcement of a law imposing a pecuniary penalty; or
(iii) For the protection of the public revenue; or
(iv) For the conduct of proceedings before any court or tribunal
(being proceedings that have been commenced or are reasonably in
contemplation); or
(f) That the disclosure of the information is necessary to prevent
or lessen a serious and imminent threat to:
(i) Public health or public safety; or
(ii) The life or health of the individual concerned or another
individual; or
(g) That the disclosure of the information is necessary to
facilitate the sale or other disposition of a business as a going
concern; or
(h) That the information -
(i) Is to be used in a form in which the individual concerned is not
identified; or
(ii) Is to be used for statistical or research purposes and will not
be published in a form that could reasonably be expected to identify the
individual concerned; or
(i) That the disclosure of the information is in accordance with an
authority granted under section 54 of this Act.
PRINCIPLE 12
Unique identifiers
(1) An agency shall not assign a unique identifier to an individual
unless the assignment of that identifier is necessary to enable the
agency to carry out any one or more of its functions efficiently.
(2) An agency shall not assign to an individual a unique identifier
that, to that agency's knowledge, has been assigned to that individual
by another agency, unless those 2 agencies are associated persons within
the meaning of section OD7 of the Income Tax Act 1994.
(3) An agency that assigns unique identifiers to individuals shall
take all reasonable steps to ensure that unique identifiers are assigned
only to individuals whose identity is clearly established.
(4) An agency shall not require an individual to disclose any unique
identifier assigned to that individual unless the disclosure is for one
of the purposes in connection with which that unique identifier was
assigned for a purpose that is directly related to one of those purposes
Response from Me to the Privacy Commission
You little rippa!
Thank you very much!