It was recently reported that some secondary schools had installed cameras in student toilet blocks in order to discourage vaping.  This seems like a pretty drastic step and one that raises serious issues as to the right to ablute in private.

Similar issues also arise in workplaces when employers seek to monitor the actions of their employees in intimate spaces, either overtly or covertly.

The starting point for determining what types of surveillance are lawful is the Privacy Act.  Principle 1 of the Act states that information should only be collected for a lawful purpose which is connected with the functions or activities of the agency. 

Monitoring activity in a bathroom could potentially constitute a lawful purpose if the employer or agency had a legitimate basis for considering that wrongdoing was occurring in that area and either wanted to discourage it or catch the people responsible for it.

However, Principle 4 of the Act further provides that an agency may collect personal information only by means that are fair and do not intrude to an unreasonable extent on the personal affairs of the individual concerned.  This requires an assessment of all of the circumstances and balancing the sensitivity of the information against the need to collect it. 

In the context of bathroom surveillance, given the degree of intimacy and invasion of personal privacy, an agency would require compelling reasons.  Whether discouraging vaping in schools is sufficient to meet the test remains to be seen, but there are likely to be few situations where this type of monitoring would be deemed acceptable.  Further, the agency would need to show that it had considered whether there were any reasonable alternatives that would be less intrusive before implementing this.

The Privacy Commissioner considered this issue in a case where a man complained that he had been filmed in the men’s toilets of a pub by a fixed CCTV camera.  He was initially unaware that a camera had been installed, but later saw the pictures taken while he was in the bathroom.

The pub manager confirmed that there was a camera operating in the men’s bathroom area and said that this was for reasons of safety and security.  He also said that signs had been posted around the pub notifying people that they may be filmed.

The Privacy Commissioner ruled that it was reasonable for CCTV cameras to be mounted in most public and staff areas of the pub, for reasons of safety and security, and that there was a genuine need for them.  In making this finding the Commissioner took into account the fact that there was adequate signage, the footage was only used for safety and security reasons and there was adequate protection of the information (for example limiting the number of employees who had access to it).

However the Commissioner found that the purpose of the camera in the men’s toilets was unclear and was capturing highly sensitive information in a manner that was unreasonably intrusive.  This was found to be in breach of Principle 4 of the Act.  The camera was a permanent fixture which overlooked the urinals and in these circumstances would have been unlawful even if there was signage notifying patrons of its existence.

Agencies, including employers, who are considering installing cameras in private spaces need to carefully consider the right to privacy.  The secondary schools that were reported to have installed cameras in toilet blocks said that the cameras were directed away from the stalls and showed only the common areas.  There was also apparently signage notifying students that the cameras were monitoring activity.  This is a start, and it is unlikely that covert surveillance in such a private space would be acceptable in many, or any, circumstances.

It will be surprising if a student or parent does not lodge a complaint with the Privacy Commissioner at some point, if this has not already occurred.  We may then learn whether discouraging vaping is a sufficient reason for this level of intrusion into personal space.   It seems borderline at best.  Possibly given the ages of the students and the strong health imperative, the schools may establish sufficient justification, but in a workplace setting it is unlikely that this would be enough.

This article was originally published in The Post