Video Surveillance Systems (VSS) and complying with General Data Protection Regulation (GDPR)
The General Data Protection Regulation (GDPR) came into force 25th May 2018 and with a new Data Protection Act 2018. The ICO Guide to Data Protection 2017 has been rewritten to reflect the GDPR now more detail is available to replace the Data Protection Act 1998. The new regulations bring some change to the way organisations will need to process and control personal data which includes images captured in by Video Surveillance Systems (VSS) which will include Body Worn Cameras (BWC), Automatic Number Plate Recognition Systems (ANPR) and Unmanned Aerial Vehicles (UAV) or Drones.
It is important for businesses of all sizes to understand the regulatory requirements, and know what actions are needed to be prepared. The penalties facing businesses for a serious data breach are fines of up to €20 million or 4% of global annual turnover.
The contents of this page are written to provide practical guidance as much as possible based on our extensive experience providing advice and audits of systems. There is much noise and scaremongering around financial penalties, even if you get things wrong, if you have a robust policy and procedures in place, document your decision process and are as transparent to data subjects as you possibly can, the ICO is more likely to advise you than fine you. There are however, some changes that may impact your business such as processing Data Subject Access Requests (DSAR) and contractual obligations when using third party security service providers undertaking security surveillance,monitoring and data processing duties.
Video Surveillance System regulations to dateUntil this year, any organisation or individual could buy and install a Closed Circuit Television System (CCTV) or more likely now a Digital Video Surveillance System (VSS). From experience very few CCTV or VSS system operators adopted or even read the ICO Code of Practice for CCTV and the is reality few were concerned about the potential Data Protection Impact of collecting recognisable images from their Video Surveillance System and possible implications.
Now however, the potential impact of GDPR is real as we have seen from the increase in fines and restrictions being imposed by the ICO. The reality is that if you are now acting as a Data Controller or Data Processor, managing Personal Data you have legal responsibility. A Data Controller must be able to justify the obtaining and use of personal data by means of a Video Surveillance System and comply with the requirements of GDPR.
Businesses need to be aware of the affect the new GDPR regulations will have on them, and this includes reviewing the use of existing Video Surveillance Systems. Accountability through transparency should be the fundamental premise of compliance planning. Televigil can provide the expert advice, policy, procedures and product to enable organisations to comply with the requirements of GDPR. To understand what your responsibilities could be as Data Controller or Data Processor see GDPR Audit check list.
What's changed and what to put in place to comply with GDPR:
1. Is Video Surveillance System (VSS) justified and the best solution?
Buying, being sold and installing VSS has never been easier and cheaper. But before making any purchase you should undertake a Security Risk Assessment (SRA) to determine whether installing a VSS will is the best solution and justified, next undertake a Data Privacy Impact Assessment (DPSA) and if a commercial or public organisation a Data Protection Impact Assessment (DPIA).
The siting and location of cameras is important. If you are placing cameras around the perimeter of your site to detect intruders entering or within your perimeter, a security risk assessment should justify this. Likewise, cameras installed in retail premises for the purpose of detecting crime and to assist with the apprehension and prosecution of offenders can be justified.
When you are capturing images where someone would expect privacy, then you must justify the need. For example, in hospital A & E waiting areas or on a public walkway – if there has been an obvious level of security or health and safety incidents, then the security risk assessment and privacy impact assessment must justify the use of video surveillance.
A detailed Operational Requirement (OR) is an essential document for both new and existing VSS as it describes the expected system performance in terms of the cameras field of view, required performance (i.e. Having the ability to provide evidential quality images or images for a defined purpose e.g. Automatic Number Plate Recognition), PIA, recorded image quality, integrity, security and duration of recorded information and will become a benchmark to enable the VSS operator to monitor the performance of the system and justification for continued use.
Televigil can carry out a security risk assessment of each camera location, the intended viewing area, privacy impact assessment, purpose, justification for the camera and audit of an existing Video Surveillance System or survey and advise on a new scheme Operational Requirement to include all information required presented as spreadsheets that will highlight any non-compliant issues and make recommendations to ensure compliance.
2. Be transparent and inform people about what you are doing and why.
Information about the use of VSS a written robust operational policy and procedures for the system operator being made available to employees. Correctly worded signage to inform the public that a Video Surveillance System is operated, the purpose and contact number for anyone wishing to make an enquiry is a legal requirement now under GPDR.
The purpose for the data being collected should be clear. This is especially important if the purpose is not obvious. If it is for employee monitoring or health & Safety, this needs to be highlighted to persons being captured by the cameras.
Televigil can carry out an inspection of the site or new scheme design drawings and assist clients with signage design and where they should be displayed. Televigil can prepare a draft Video Surveillance System policy document written around BS 7958:2015 CCTV Management and operations code of practice, current best practice and make recommendations for the client, and information handouts if required.
3. The Data Controller needs to justify reasons for storing, retaining and processing data securely.
It is generally about 30 days’ retention. If you feel you need to retain Video Surveillance System data for longer, then your risk assessment should state how long and why. A modern Video Surveillance System will allow you to set retention limits per camera and may have additional features including Privacy Protected Video Surveillance Video Motion Detection, Video Content Analysis and operator alert functions that can optimise and make the system operation more efficient.
Televigil can advise on the best configuration and security set up to ensure that the data recording procedures are optimised and fit for the purpose intended to provide evidential quality recording and documentation to manage and record processes.
4. Permit Data Subject Access Requests or DSAR for personal data
Article 15-GDPR states ‘Any person whose image is recorded on a Video Surveillance System has a right to seek and be supplied with a copy of their own personal data from the footage.’
So, anyone who is captured and can be recognised or identified by your Video Surveillance System cameras has the right to request that footage, it is seen as personal data. They must follow a procedure, but are perfectly within their rights and any request must be responded to within 30 days. If any other individuals are visible in the footage, there needs to a footage redaction service provided i.e. identify and pixelate the faces/identity/number plates of other data subjects. Data Controllers are no longer able to charge upto £10 administration fee. However, In most cases you cannot charge a fee to comply with a subject access request.
However, as noted above, where the request is manifestly unfounded or excessive you may charge a “reasonable fee” for the administrative costs of complying with the request.
You can also charge a reasonable fee if an individual requests further copies of their data following a request. You must base the fee on the administrative costs of providing further copies. for some DSAR reasonable costs may be chargeable for editing and redaction services. Good advice about understanding and processing DSAR is available on the British Standards Institute - BSI Website here.
Televigil can provide you Data Subject Access Request documentation and media, we can also provide a pixelation or redaction service to enable you to offer redacted and edited video to comply with DSAR's.
5. Provide access to and relevant Video Surveillance System images to the Police
The Police may request footage from you and you may supply this, but you must always ensure it is made by a written request on appropriate police headed paper and correct forms. Police will often just want to view the footage on the premises of the Data Controller or Processor, this action should not raise any concern for data protection as long as the correct procedures are followed and include written authorities.
Televigil can provide clients with log books and viewing documentation, evidential download documentation and media including portable encrypted memory storage devices.
6. Ensure and demonstrate compliance with GDPR and other legislation
Security service providers may act as Data Processors under GDPR. The VSS operator (the Data Controller) must have a contract in place which details what the security service provider (the Data Processor) may do with the data; what security standards should be in place and what verification procedures may apply.
Whenever a controller uses a processor it needs to have a written contract in place. The contract is important so that both parties understand their responsibilities and liabilities, GDPR sets out what needs to be included in the contract.
Controllers are liable for their compliance with the GDPR, must report a serious data breach within 72 hours and must only appoint processors who can provide ‘sufficient guarantees’ that the requirements of the GDPR will be met and the rights of data subjects protected. In the future, using a processor which adheres to an approved code of conduct or certification scheme may help controllers to satisfy this requirement – such schemes are currently not available but in the process of being determined.
Processors must only act on the documented instructions of a controller. They will however have some direct responsibilities under the GDPR and may be subject to fines or other sanctions if they don’t comply.
A reputable security service provider will comply with the Data Protect Act and automatically adhere to all GDPR regulations which will include regular reviewing of the performance of VSS, policy and prodedures and must notify the Data Controller of any potential issue or non-compliance.
Televigil can prepare a draft Video Surveillance System Operational Policy and Procedures document, which can form part of the contract between Data Controller (the client) and Data Processor (the security service provider). You can view a GDPR Check list here. We can also undertake VSS performance assessments and operational audit. If you need legal advice visit Taylor Wessing
Our team of consultants have a good knowledge and understanding of the security industry and DPA and GDPR, and keep up to date with the evolving guidance and information being published by the ICO and other respected authorities to assist organisations understand their criteria and legal requirements to ensure compliance with GDPR and other current legislation where appropriate.
Taking the above into consideration many organisations need to look at their security arrangements and ensure there are no likely breaches of regulations. Being complacent or an innocent oversight could result in a financial penalty or your business discredited. It is no longer acceptable to ‘not understand’ or ‘not be aware of’ the legal obligations associated with operating Video Surveillance Systems.
The latest information and guidance is available on the ICO website.
The British Standards Institute- BSI. Has a series of "Path to GDPR" webinars available to log-into online.
The following white papers are also worth reading:
Technology’s role in data protection – the missing link in GDPR - published by PricewaterhouseCooper LLP.
Watching the Watchers CCTV, the GDPR and the third wave of Data Privacy Regulation – published by Cloudview (UK) Ltd and Andrew Charlesworth.
Demonstrating General compliance with the GDPR
Organisations must ensure security technologies and controls are in place to protect critical systems, customer information, and confidential data from being stolen on or offsite. Focussing on compliance alone is not enough, companies must also address their corporate culture, including employee attitudes about security, changing the way employees think about company information and their role in protecting it.
Despite the UK’s vote to leave the European Union, the Information Commissioners Office (ICO) has stated that the UK will still adopt the General Data Protection Regulation (GDPR), which will impose much stricter data protection penalties than the current Data Protection Act (DPA).
Are you ready for EU GDPR? Follow ICO guidance here.
And 12 steps to follow in preparation to help ensure compliance with EU GDPR.
TeleVigil Security and DPA Compliance consultants are able to offer professional and technical support regarding the use of Surveillance Systems being operated by organisations that currently have to comply with DPA. Compliance with the international information security standard ISO/IEC 27001 Information Security Management Systems (ISMS) and will help organisations demonstrate that they endeavoured to comply with the GDPR requirements. One or more schemes to provide some form of certification are likely to emerge, but it may be sometime before that happens. So for now organisations should if not already doing so, be working towards ISO 27001.
The General Data Protection Regulation (GDPR) will significantly impact businesses' approach to data privacy compliance. Businesses should start preparing now to make sure they are compliant when the GDPR comes into effect on 25 May 2018, and manage the risks accordingly. Not only do organisations have to comply with the GDPR, they also have to be able to demonstrate compliance. Here are some top tips to help you go through the compliance burden.
UK and the GDPR
The peculiarity of the GDPR is that it extends the reach of EU data protection law to non-European businesses. In particular, non-European businesses which offer goods or services to data subjects in the EU or monitor the data subjects' behaviour (provided that such behaviour takes place in the EU) will be have to comply with the GDPR despite having no office or subsidiary in the EU.
Implications of the accountability principle for businesses
The GDPR focuses on the concept of accountability whereby businesses will have to "demonstrate" compliance with the principles relating to the principles of personal data. This will involve implementing more demonstrable processes and maintaining a proactive approach. Businesses should also be prepared to respond to requests from individuals who want to exercise their rights about the processing of their personal data, businesses who are using data processors to process their commercially sensitive information, or requests and investigations from Supervisory Authorities (SAs). Failure to do so may expose businesses to high fines (up to 4% of the annual turnover or 20 million Euros, whichever is higher), damage to their reputation and/or loss of business opportunities.
Steps towards demonstrating compliance with the GDPR
No matter their size and industry sector, businesses may find it useful to put in place a GDPR compliance programme to implement and monitor their data processing activities, both in terms of their internal business, and for their clients and other third parties they deal with.
Assessment of current data privacy practices
Businesses should review their existing data privacy practices against the GDPR requirements to identify the actions they need to implement to meet the GDPR requirements by 2018. They may then want to identify the key compliance issues they need to focus on to implement their future projects involving the handling of personal data in line with their commercial objectives and market trends. This assessment should be carefully carried out as it will determine what they need to do to comply with their GDPR obligations. This may include assessing the current technologies used to deliver the services to their clients so they also help meet the GDPR requirements. Elements of effective data security management to be considered should include the following:
1 - Setting up a privacy compliance framework
2 - The role of the DPO
3 - Common data security failures, consequences and lessons to be learnt
4 - GDPR privacy principles
5 - Data privacy impact assessments
6 - Developing a risk management framework
7 - Data mapping
8 - The rights of data subjects
0 - Consent rules
10- Subject access requests
11 - The roles of and relationships between controllers and processors
12 - Dealing with third parties and data in the Cloud
13 - Demonstrating compliance with the GDPR
14 - Data breach reporting requirements
15 - Range of enforcement, regulatory and compensatory aspects of the GDPR
Creation of a data privacy governance structure
The creation of a data governance structure of a data privacy governance structure is helpful to implement and drive the GDPR data privacy compliance programme. It needs to involve senior management at the outset of its inception to ensure it is incorporated into the board management's agenda and is fully supported throughout its lifecycle. It should set out the tasks, responsibilities and reporting lines of the individuals involved and should remain in place on a permanent basis to ensure continuous compliance with the GDPR. Businesses that already have a data protection officer (DPO) in place may ask the DPO to create such governance structure and be accountable for the overall data privacy programme. Those who do not have a DPO yet should carefully consider designating one internally or externally, whether or not they are required to do so.
Personal data inventory
Both data controllers and data processors have the obligation to maintain records of their processing activities including the personal data flows. This is a major shift from the current European data protection regime where some Member States require prior authorisation of certain personal data processing activities (e.g. for the transfer of personal data). This also means that businesses will need to have a clear understanding of their data processing activities and security systems to be able to record them all. A data mapping exercise may prove useful to achieve this. This involves creating specific tools (manual or electronic) that capture the obligations and constantly monitor and report on data processing activities. That inventory must be up-to-date and as accurate as possible as it may be subject to audit.
Creating information notices
The GDPR requires data controllers to inform the data subjects about the processing activities carried out including detailing the type of data collected, the purpose for which it is collected, how it is being used and protected, the name of the organisation processing the personal data and the data subject's rights including the right of access, to object, and to erasure (the right to be forgotten). This transparency obligation means that businesses will have to comply with their notice obligations (a list of mandatory notices is provided by the GDPR) and amend their internal policies accordingly.
The conditions for consent are harder to meet under the GDPR and businesses will have to review their current data processing activities which rely on consent, as well as their privacy policies. In addition, businesses will have to document the collection of consent. For employment purposes, specific conditions may apply as Member States are entitled to take specific measures in that area so businesses should be aware of any additional requirements in their own jurisdiction. As far as marketing activities are concerned, it remains to be seen whether the e-Privacy Directive (currently under review) will align its conditions for consent with the GDPR.
Implementation of technical and organisational measures
Both data controllers and processors have to implement appropriate technical and organisational measures to ensure that personal data processed is securely and adequately protected. Businesses should explore implementing security techniques such as privacy by design and default in their data processing activities. They should also work alongside their cybersecurity teams and other business functions to ensure that the appropriate security measures are applied and comply with their clients' requirements where appropriate. Again, there should be clear documentation of these techniques as well as regular testing and updating.
Data Protection Impact Assessments
Data Protection Impact Assessments (DPIAs) are an essential compliance tool under the GDPR. They are intended to help identify and manage risks to personal data. They are also crucial in showing the SAAS that a business has done everything it can to ensure data is processed in accordance with the law.
Reporting personal data breaches
The GDPR specifically mentions that reporting personal data breaches forms part of the accountability principle. Businesses will need to create formal procedures to ensure that personal data breaches are addressed appropriately and in a timely manner to mitigate the risks to the individuals affected by the breach (e.g. misuse, loss of data, damage, rights and freedoms of the individuals). Such procedures will need to be tested to ensure they work properly. The introduction of the accountability principle means that businesses will have to do more and be seen to be doing more to comply with European data protection law. The creation of a GDPR data privacy compliance programme is the first step. Demonstrating compliance is not just about showing that a business can achieve compliance with the GDPR requirements. It has to reflect and record actual compliance.
Frequently asked questions and answers from ICO website?
When is the GDPR coming into effect?
The GDPR was approved and adopted by the EU Parliament in April 2016. The regulation will take effect after a two-year transition period and, unlike a Directive it does not require any enabling legislation to be passed by government; meaning it will be in force 25th May 2018.
In light of a uncertain 'Brexit' - I represent a data controller in the UK and want to know if I should still continue with GDPR planning and preparation?
If you process data about individuals in the context of selling goods or services to citizens in other EU countries then you will need to comply with the GDPR, irrespective as to whether or not you the UK retains the GDPR post-Brexit. If your activities are limited to the UK, then the position (after the initial exit period) is much less clear. The UK Government has indicated it will implement an equivalent or alternative legal mechanisms. Our expectation is that any such legislation will largely follow the GDPR, given the support previously provided to the GDPR by the ICO and UK Government as an effective privacy standard, together with the fact that the GDPR provides a clear baseline against which UK business can seek continued access to the EU digital market.