Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Tuesday, 7 July 2009

More on Cameras

Following up from yesterday's post, I've had some interesting and thought-provoking comments (some here, some on a personal blog where I posted a link to yesterday's entry). I thought I'd address some of the points raised.

Interpretation

This whole issue is over whether a camera would be considered to be a computer under s.3 Computer Misuse Act 1990. This is a matter of statutory interpretation, so what do the normal principles by which courts do this tell us?

The first rule of statutory interpretation is the 'Literal Rule' - words are to be taken as meaning what they say. On the one hand, this might go against taking a camera to be a computer, because on the face of it a camera is one thing and a computer is another. As I said yesterday though, whilst this might have been clear-cut when the CMA was first drafted, it is a lot less so now, and I still think a good case could be made that a literal interpretation would be by no means unambiguous.

The second rule is the 'Golden Rule' - words should not be interpreted so as to lead to an absurd result. I would submit that not to define a digital camera as a computer would lead to the absurdity that it would be permissible to delete photographs from a memory card whilst it was inside the camera, but illegal if it was removed and plugged into a PDA. Why should it be legal to do this when the card is in one gadget held by the photographer but not when it is in another?

Finally, there is the 'Mischief Rule' - where doubt remains, look at the undesirable behaviour, or 'mischief', that the law is trying to prevent. The intent of s.3 is clear: it was enacted to close a loophole in English law by which it was not an offence to damage, destroy or block access to data in circumstances where the same act in relation to a physical embodiment of that data (e.g. a tape, floppy disk or hard drive) would have constituted criminal damage or theft. Now, I think it likely that if someone insisted on pulling the film out of a camera and exposing it to the light, then this would be criminal damage, because the film would have been rendered useless and the pictures on it lost. So there is no reason why equivalent conduct with a digital camera should not be treated in the same way - the underlying mischief is the same.

Intellectual Property

Somebody asked if an action might law in respect of the IP in pictures deleted on a camera. My understanding of this, as reinforced by a quick look at Copinger and Skone James, is that no criminal or indeed civil action lies for the destruction of copyright material - only for its infringement. C&SJ goes as far as to say that outright destruction (as distinct from mutilation) does not even infringe the moral rights of the photographer, because there is no remaining mutilated image to be seen. If you could prove that an image would have had real, tangible value - for instance if you got a very newsworthy shot but a police officer forced you to delete it - then I can see that you might be able to sue for trespass and claim damages. But I don't think that IP can be of much assistance.

Other Offences

As some other readers have noted, if a security guard - who by my understanding has no rights to confiscate an item from somebody - takes or tries to take a camera, he or she stands a good chance of being liable for assault, robbery or possibly blackmail. I'd welcome comments on this.

3 comments:

MadHatter0 said...

i mention this solely as i haven't seen it form part of this discussion yet.

i got my camera (canon powershot G9) in large part because i could use a free firmware on it instead of canon's firmware.

the canon hack development kit firmware is substantially more powerful than canon's, and includes not only camera-useful features like motion detection shutter-release and a vastly widened range of exposures, but also some very general-purpose features like a file browser and some games. if that doesn't make my camera a computer, i really don't know what does.

see http://chdk.wikia.com/wiki/CHDK for more details, if you have a canon camera with a DIGIC 2, 3 or 4 chipset.

Anonymous said...

This is all too far fetched.
You may possibly be right about a camera being a computer, but how in the world an alpha copper would take this obscure 1990 law into consideration when he can't even be bothered with understanding section 44 of the Terror Act?
I understand your argument but you should keep it for the court, there is no way a cop would get your point at the first place.
You are 'couper les cheveux en quatre' or 'chercher midi a quatorze heures' as we say in French...

Simon Bradshaw said...

Anonymous,

If a police officer attempts to force me to delete an image, then I would very politely point out that he may well be committing a criminal offence by doing so. Then, when I bring a private prosecution under the CMA, he will have more difficulty claiming that he did not appreciate that what he was doing might be an offence.

More significantly, there has since I wrote this been firm guidance from both government and senior police officers that it is indeed illegal to force people to delete photographs from cameras.