What can happen to someone install a webcam on the sly?

Chucky the tree

What exactly can a voyeur be charged with for secretly recording the sexual acts of another person/other persons?

Hooch

Chucky the tree wrote: »

What excactly can he be charged with?

To be honest I dont think anything. Everyone is telling him to go to AGS but I dont know of any criminal law covering this. 'voyeurism' is a clinical term and not an acually offense.

May a solicitor here could clarify if there would be a civil matter arising out of it...or indeed I could be wrong and there might be Criminal law for if, but i really dont think there is

Jev/N

Article 40.3.1°
The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Haven't any constitutional books to hand but previous cases have put forward various non-exhaustive lists of personal rights, I'm sure the right to privacy was mentioned somewhere.

He could sue under tort (privacy), but the problem is there is no specific legislation here as far as I'm aware. The Privacy Bill hasn't been enacted yet

Tom Young

Privacy Bill is not relevant.

This is actionable under a number of differing mechanisms including the ECHR Act 2003:

Cogley v. R.T.E. [2005] 2 I.L.R.M. 529. That case concerned an intended broadcast of a programme in relation to the operation of a nursing home known as Leas Cross Nursing Home. Two sets of proceedings were brought against RTE seeking to prevent the broadcast of the programme. The plaintiff in the first set of proceedings was a Director of Nursing at the nursing hone and the plaintiffs in the second set of proceedings were the owners and occupiers of the nursing home. Using a concealed camera, a worker filmed the operation of the nursing home over a two week period. The plaintiffs in the second proceedings based their application primarily on the allegation that the use of a secret camera was a breach of the right to privacy of the plaintiffs and the patients at the nursing home and constituted trespass. In considering the extent of the constitutional right to privacy as set out in Kennedy v. Ireland, Clarke J. noted at p. 90:-

“However, it is also clear from Kennedy v. Ireland [1987] I.R. 587 that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts 1960 to 1976 referred to above is also not unqualified in that it places an obligation on the Broadcasting authority not to ‘unreasonably encroach’ on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs have a constitutional right to privacy and an arguable entitlement to ensure that the Broadcasting Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified. It is, therefore, necessary to address how the right of privacy may be balanced against other competing rights and, in particular, how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this.”

Clarke J. went on to comment as follows:

“A useful starting point for the purposes of this case seems to me to be to distinguish between a right of privacy in the underlying information whose disclosure it is sought. to prevent, on the one hand. and, on the other hand, the situation where a right to privacy which does not extend to that underlying information but it is contented that the methods by which the information has been obtained amount to a breach of privacy.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors which may be involved, such as the public interest, be able to maintain that the information must always be kept private but may make a complaint in relation to the manner in which the information was obtained.
It seems to me the different considerations apply most particularly at an interlocutory stage, dependant on which of the above elements of the right to privacy is involved.”

Ultimately in that case the court went on to refuse the interlocutory relief sought. Clarke J. did comment (at p. 93) that the plaintiffs had at least made out an arguable case to the effect that the circumstances in which the filming occurred may amount, prima facie, to a trespass and breach of privacy. However, he went on to hold that the mere fact that information may arguably have been obtained in breach of an individual’s rights is not of itself necessarily decisive. He pointed out the importance of weighing in the balance any public interest issues which arise and given that he was dealing with an interlocutory application, the extent to which damages may be an adequate remedy.

M. v. Drury referred to above that because the plaintiffs in those cases failed to obtain the interlocutory relief sought, and bearing in mind that there has not been a decision arising out of a full trial of a claim for damages for breach of privacy against a private person or entity, that no such right exists.

Cogley v. R.T.E. are the following principles:-

(1) There is a Constitutional right to privacy.
(2) The right to privacy is not an unqualified right.
(3) The right to privacy may have to be balanced against other competing rights or interests.
(4) The right to privacy may be derived from the nature of the information at issue - that is, matters which are entirely private to an individual and which it may be validly contended that there is no proper basis for the disclosure either to third parties or to the public generally.
(5) There may be circumstances in which an individual may not be able to maintain that the information concerned must always be kept private, having regard to the competing interests which may be involved but may make complaint in relation to the manner in which the information was obtained.
(6) The right to sue for damages for breach of the constitutional right to privacy is not confined to actions against the State or State bodies or institutions.

Tom Young

2001 Criminal Justice Theft and Fraud Offences Act Section 9.

9.—(1) A person who dishonestly, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of making a gain for himself or herself or another, or of causing loss to another, is guilty of an offence.

(2) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.

Gardai notoriously are not trained in this area at the local station level however as you can see from the toll above, this is prosecutable in a criminal context.

The hidden webcam was/is connected to a PC, the PC or laptop is recording the above. So in effect Section 9 applies.

Solicitor.

BertrandMeyer

Well... I'll put it this way. With all this big brother stuff, it should be easy to show donors' approximate locations, and in some cases, employer names, from data the state collects under campaign finance disclosure laws. Then it combines that data with Google Maps to show donors' approximate locations, and in some cases identify their employers. Upon reaching the destination, a handler could say a key word, the original personality would be totally unaware of it. They even took in escaped African slaves and lived with them – deny it's happening, cover it up, and carry on until it's a medieval dictatorship. This idea of creating perfect spies was the basis for the 1959 novel The Manchurian Candidate by Richard Condon.

r14

Tom Young wrote: »

M. v. Drury referred to above that because the plaintiffs in those cases failed to obtain the interlocutory relief sought, and bearing in mind that there has not been a decision arising out of a full trial of a claim for damages for breach of privacy against a private person or entity, that no such right exists.

I don't know of any criminal offences that cover this situation.

What Tom Young is saying about Cogley is true but there have been a couple of cases where people have sued privately for breach of the right to privacy and recovered.

One was Gray v Minister for Justice where a family successfully claimed damages from the Gardai. Prpobably more important in this case is Sinnott v Carlwo Nationalist (unreported - link to newspaper article here and here). In Sinnott a guy successfully argued that a Constitutional Tort had been committed against him by invasion of privacy and he got 11,000 euro. Crucially the standard set by Budd J for recovery was proof of negligent invasion of privacy but in the webcam case here the invasion is clearly deliberate

It's quite a tricky case as there is no well recognised cause of action here so if anything is to come of it he reallly needs to get a solicitor. That said I think the Constitutional tort route could work.

Tom Young

Two comments:

1. Recovery against the state as you cite above is one thing, against a private party is an entirely different matter;

2. I accept the point on Section 9.

Herrity is a recent one on phone tapping which is interesting, but its not Computer Misuse.

r14

Tom Young wrote: »

1. Recovery against the state as you cite above is one thing, against a private party is an entirely different matter;

This is true in the US or the UK but Ireland is interesting because we do actually recognise a "private constitutional tort". That is you can enforce your costitutional rights against another individual and not just the State.

It all originated in Meskell v CIE where one of the judges (can't remember which one) said that if a person has been wronged by a breach of constitutional rights he should be allowed to recover - he did not distinguish between recovery against the state and recovery against a private actor.

The best case on the matter is Lovett v Grogan [1995] 3 IR 132. Here a director of a bus company which ran a service under a licence got an injunction against an unauthorised service provider based on a breach of his constitutional right to earn a livelihood.

This constitutional tort has continued through Gray and Sinnott and I think it is fairly well established, although the burden of proof is still unclear. I think the argument could certainly be made that the guy with the webcam breached the right to privacy and you could bring an action based on the Constitutional tort. It's right on the fringes of the law so you'd want a good solicitor but it is an option.

Edit: I love a good hypothetical discussion. We should really have more of these.

Tom Young

Actually, there are tighter laws in the UK on such matters such as RIPA and also the 2007 Criminal Justice Act properly criminalises such activity.

I am less interested in the Constitutional tort issue.

Read Herrity v MGN - Interesting given Dunne J methodology of construing the Legislation as against the constitutional right etc.

Victor

BertrandMeyer wrote: »

Well... I'll put it this way. With all this big brother stuff, it should be easy to show donors' approximate locations, and in some cases, employer names, from data the state collects under campaign finance disclosure laws. Then it combines that data with Google Maps to show donors' approximate locations, and in some cases identify their employers. Upon reaching the destination, a handler could say a key word, the original personality would be totally unaware of it. They even took in escaped African slaves and lived with them – deny it's happening, cover it up, and carry on until it's a medieval dictatorship. This idea of creating perfect spies was the basis for the 1959 novel The Manchurian Candidate by Richard Condon.

Whut?

skyhighflyer

Tom Young wrote: »

2001 Criminal Justice Theft and Fraud Offences Act Section 9.

9.—(1) A person who dishonestly, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of making a gain for himself or herself or another, or of causing loss to another, is guilty of an offence.

(2) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.

Gardai notoriously are not trained in this area at the local station level however as you can see from the toll above, this is prosecutable in a criminal context.

The hidden webcam was/is connected to a PC, the PC or laptop is recording the above. So in effect Section 9 applies.

Solicitor.

I wouldn't have thought this was relevant. Surely the Theft and Fraud Offences Act only covers gains or losses that can be quantified in monetary terms? Maybe if he was selling the footage to a voyeur website or something, but I can't see how this act could apply on the facts.

sh_o

What about the Data Protection route? Data Protection commissioner could form a view on such a matter and take a prosecution.

axer

sh_o wrote: »

What about the Data Protection route? Data Protection commissioner could form a view on such a matter and take a prosecution.

I'm pretty sure data protection deals with data that is stored.

Tom Young

I think you'll find you can't recover under the DP act. Nice as it would be.

hullaballoo

No, the T&F Offences act has provision expressly relating to accessing data. S. 5 of the Criminal Damage Act might be useful here as well.

(1) A person who without lawful excuse operates a computer—
(a) within the State with intent to access any data kept either within or outside the State, or
(b) outside the State with intent to access any data kept within the State,
shall, whether or not he accesses any data, be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or imprisonment for a term not exceeding 3 months or both.
(2) Subsection (1) applies whether or not the person intended to access any particular data or any particular category of data or data kept by any particular person.

Thirdfox

Wasn't there the case of a Galway man/landowner who surreptitiously got footage of girls showering in his accommodation around 1-2 years ago? I recall the news saying that he had been arrested by Gardai...

Or am I making all this up?

It would seem strange not to have an explicit law state that spying on someone (for sexual or non-sexual purposes) is a criminal offence.

sh_o

Axer wrote:

I'm pretty sure data protection deals with data that is stored.

Section 2A processing of personal data would catch this I would presume.

Tom Young wrote: »

I think you'll find you can't recover under the DP act. Nice as it would be.

The Data protection commissioner can take a criminal prosecution - S 30
If you want financial 'compensation' in a Civil suit - S 7 creates a 'duty of care' which may open the doors for a negligence claim (if the other elements were present..... damages for emotional suffering perhaps?)

hullaballoo

Thirdfox wrote: »

Wasn't there the case of a Galway man/landowner who surreptitiously got footage of girls showering in his accommodation around 1-2 years ago? I recall the news saying that he had been arrested by Gardai...

Or am I making all this up?

It would seem strange not to have an explicit law state that spying on someone (for sexual or non-sexual purposes) is a criminal offence.

That's a rumour that's been doing the rounds for years. I don't know how true it is, though.

asdasd

9.—(1) A person who dishonestly, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of making a gain for himself or herself or another, or of causing loss to another, is guilty of an offence.

Without the added term "dishonestly" that law could arrest all software companies and internet sites. Shouldnt laws be more exact on what is "dishonest" means, or do we just let judges decide.

axer

hullaballoo wrote: »

That's a rumour that's been doing the rounds for years. I don't know how true it is, though.

http://www.irishtimes.com/newspaper/breaking/2003/0407/breaking63.htm

Hooch

axer wrote: »

http://www.irishtimes.com/newspaper/breaking/2003/0407/breaking63.htm

This was a case of harrassement, Section 10 of the Non fatal Offences against the person Act 1997. It was an on going incident with not just spying involved. Harrassesment is quite hard to prove unless its over a period of time. I.E. one case of ''spying'' is not harrassement.

hullaballoo

Sorry folks, I got a PM suggesting that it might be a little insensitive to have an actual version of events so I've removed the content. If the OP is now too ambiguous, let me know and I'll re-word it.

Cheers.

Thirdfox

axer wrote: »

http://www.irishtimes.com/newspaper/breaking/2003/0407/breaking63.htm

Exactly what I was thinking of - though just goes to show I'm getting old now if the story was from 2003 and I thought it was 1-2 years ago

Tom Young

sh_o wrote: »

Section 2A processing of personal data would catch this I would presume.



The Data protection commissioner can take a criminal prosecution - S 30
If you want financial 'compensation' in a Civil suit - S 7 creates a 'duty of care' which may open the doors for a negligence claim (if the other elements were present..... damages for emotional suffering perhaps?)

Save for the burden of proof issues under S.30. S.7 has no penal or fiscal endorsement, thus one must show actual damage - merely exhibiting probable or proposed is not enough. Needs reform.

sid4lev

Here's an interesting potential avenue:

S.2(1) of the Criminal Law (Rape) (Amendment) Act 1990 states:
"The offense of indecent assault on any male/female person shall be known as sexual assault"

What this means is that to prove sexual assault under this section, you must prove:
a) That there was an assault
b) That the assault was indecent

S.2(1) of the Non-Fatal offenses against the person act 1997 states:
"A person shall be guilty of the offense of assault who, without lawful excuse, intentionally or recklessly:
a) Directly or indirectly applies force to or causes impact on the body of another OR
b) Causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact"

In other words, assault may be non-physical-ie-no contact need be made.

Getting back to sexual assault and our voyeur. I think its reasonable to suggest that a non-consensual victim of voyeurism, upon discovering the spy camera could reasonably apprehend an assault of an indecent nature.
(whether its immediate enough or not will depend on the facts and is a hole in this theory). Whether the assault happens or not is irrelevant because as long as its reasonably apprehended, it will fall under the 1997 act and is therefore a non-contact form of sexual assault under the 1990. act.

i know its far-fetched....kinda fun though!

jayo245

If the camera/recording equipment was plugged into your electrical supply they could be criminally prosecuted for theft of the electricity (S.4(1) Criminal Justice (Theft and Fraud Offences) Act 2001 and burglary S.12(1).