With Woolworths staff using body worn cameras, what are the legal considerations?

‘What advice are staff given about how that data could be used against them?’

With Woolworths staff using body worn cameras, what are the legal considerations?

In April, Woolworths New Zealand rolled out body worn cameras for staff at all of its stores to help ensure their safety.

It came after a successful trial with employees, who found them helpful in de-escalating conflict and making them feel safer at work.

“Our team deserves to feel safe coming to work every day and what they’re dealing with is unacceptable,” Woolworths New Zealand Director of Stores, Jason Stockill, said in a statement.

“While 99% of people walking through our door are great and treat our team well, every day our team across the country are still experiencing instances of abuse and aggression from shoplifters and other offenders,”

In the last three years, Woolworths has seen a 75% rise in physical assaults and 148% increase in serious reportable events

“Speaking to team members who have trialled using team safety cameras, they’ve told me they feel much safer knowing that they have a tool to record abuse or conflict when it arises - and often turning the camera on actually de-escalates the situation completely, which is fantastic,” Jason added.

But what could these cameras mean when it comes to privacy of employee and customers?

Body worn cameras

Woolworths said the cameras will only be turned on “in the event of a security incident and footage will not be released except when requested by police as part of an investigation”.

In addition, staff have to notify customers before recording.

Gehan Gunasekara, associate professor of commercial law at The University of Auckland, acknowledged the reasons for the cameras, as they would act as a deterrent for customers who are argumentative or attacking staff.

However, he highlighted the potential issues that could also stem from using them. Gunasekara used the theory of the “panopticon effect” where people who are under surveillance are more likely to behave themselves.

“If you think you're being watched all the time, then you might not behave in the way that you would normally behave, even if it's not illegal,” he told HRD New Zealand.

“And then people might be afraid to speak freely, not knowing if the cameras have audio functionality. But I guess it's a balancing act because if the cameras can be shown to actually minimise or prevent acts of violence or intimidation, then Woolworths would say that the practice is justified.”

Privacy laws

Woolworths’ safety cameras are part of the supermarket’s $45 million program to put more security cameras in stores. And the company said every security measure it will use “complies with New Zealand law including privacy requirements.”

Gunasekara highlighted that broadly under New Zealand’s Privacy Act people need to be told that their personal information is being collected.

“The first challenge would be that Woolworths would need to disclose,” he said. “Just having the cameras on people isn't enough because people may not understand the significance of the cameras. There would need to be very prominent signage and there would need to be statements on their website, perhaps.

“And for those people who are members of the loyalty program, perhaps they could also be advised through the website and by email that this practice is being entered into. People need to be told because your image is your personal information.”

Another aspect to consider is whether the cameras will also have facial recognition abilities, Gunasekara said.

“My understanding is that it's not hard to embed facial recognition software into even normal cameras,” he said. “So nowadays, we have to assume that all cameras have the capability of facial recognition. So that aspect would need to be very clearly laid out.”

More privacy considerations

Further considerations are around the data that is collected from staff and customers.

“What advice are staff given about how that information could be used perhaps, potentially, against them?” Gunasekara said. “Is it going to be only used to protect them? Or is it going to be used to perhaps discipline them if they have behaved inappropriately? Is it going to be used for training purposes, for continuous professional development?

“All of those things are possible using the technology but the question is, how much transparency and how much buy-in from staff has there been to these techniques.”

In addition, employees have the right under the New Zealand Privacy Act to ask for access to their own information, Gunasekara said.

“That's problematic because if an employee asks for access to information, to see the footage, that might also disclose information about a customer. And vice versa, a customer might want to know,” he said. “Then there's issues of how long that data is retained. There's a whole lot of privacy issues here. It's not a simple exercise by any means.”

Risks for employers

Gunasekara emphasised the importance of employers abiding by the privacy laws as people are increasingly aware of their rights under privacy legislation. And while employers could face fines or damages for beaching those laws, one other risk is reputational damage.

“An agency that's found to be not complying risks reputational damage, which I think would be a greater risk than the actual fines or damages that it might have to pay out to an affected individual,” he said.

Employers should also ensure they clearly communicate the purposes of using body worn cameras to staff.

“An example would be where they [employees] are told that the cameras are for their protection… then it turns out that the footage is actually used to discipline them for poor service – you're not fast enough, you're talking to too many customers, you're not doing your job,” Gunasekara said.

“If they haven't been made aware that that is a risk, and that is one of the criteria that the cameras will be used for, that's a clear breach of the privacy principles. And that employee would then have a remedy under the Privacy Act.”

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