times. On the other hand, statute does not have to wait for cases as they arise;
it can provide answers and fill the obvious gaps from the outset. The process of
statute-making also allows for wide consultation of affected interests.
if it is decided that there should be a statutory tort, there is then a question as
to what its content should be. We ask questions about that.
20
The discussion of the disclosure tort is the main topic in p
art 2. We also ask,
however, whether anything needs to be done to rationalise the present criminal
offences relating to disclosure of personal information: whether they are all
necessary; whether others should be added; and whether any inconsistencies
and anomalies in them should be eliminated. We also ask whether
be merit in providing expressly by statute for a civil remedy for the breach of
some of the criminal provisions. p
rovisions expressly allowing for a civil remedy
for breach of a statute would grant more certainty than is currently available.
21
i
n
p
art 3 we examine surveillance and other forms of intrusive conduct.
s
urveillance we define as the use of devices intentionally to monitor, observe or
record peoplefs actions or communications. it can take a variety of forms,
including observing, listening to, watching, recording, or otherwise collecting
information about people. One of the most common forms of surveillance is
closed-circuit television (CCTV), but there are many other types: radio frequency
identification (
r
F
i
D)
such as Global p
ositioning
s
ystem (G
ps
)locators.
s
ome types of data monitoring,
such as the use of spyware, are also included in our discussion.
22
There can be a number of reasons why people might wish to undertake
surveillance, and some of them are quite legitimate. They include gathering
evidence of wrong-doing, deterring wrong-doing such as theft or speeding,
monitoring performance (say, in a workplace), determining the preferences of
customers in a store, or monitoring a young child or an infirm person at home.
Other purposes are totally unacceptable: voyeurism, for example
23
surveillance can take place in a public or private place. While, generally speaking,
surveillance in a public place is less problematic, it should not be assumed that
it is always acceptable. p
eople in public places do not give up all their expectations
of privacy, particularly if they are caught in a vulnerable situation not of their
own making, and there can also be important questions as to the use to which
the information collected is put, how long it is stored, and who has access to it.
There is also a distinction between targeted and mass surveillance, the one being
focussed on an identifiable person or persons, the other casting the net more
widely. a nother distinction is between covert and overt surveillance.
Covert surveillance occurs secretly, without the knowledge of the subjects,
while overt surveillance takes place openly with the subjectsf knowledge,
or at least with notice having been given that surveillance is taking place.
Generally, overt surveillance is the less intrusive mode, but it would be wrong
to conclude that it is free of problems: few people would be comfortable if they
knew they were being watched all the time, particularly when they are on private
property. We acknowledge that this distinction between overt and covert
surveillance is imperfect: for example a person can sometimes be unaware of the
presence of closed-circuit television cameras even though no attempt has been
made to conceal them. s
urveillance, whether overt or covert, can have negative
effects: the chilling effect of being watched, loss of anonymity, stress and
surveillance:
background
Summary
8
Law Commission Issues Paper
