Limiting Liability in the Video Age
Video surveillance technology has developed dramatically since it was first introduced in the 1950s. Perhaps one of the most promising innovations to surface in recent years has been the introduction of remote video surveillance.
By permitting security personnel to view and direct video surveillance from remote locations in real-time, remote video surveillance offers the promise of preventing crime rather than just reporting it. Instead of simply recording actions on videotape to be reviewed after a security incident has taken place, remote video surveillance allows security personnel to monitor potentially dangerous situations and intercede before harm occurs.
Security companies can also conserve resources and reduce the number of false alarms by verifying via remote video that a reportable event has in fact occurred.
With the benefits of remote video surveillance, however, come risks for the security company that undertakes such work. By playing a more active role in assessing security incidents and relying on its employees’ judgment in determining whether to respond or investigate further, a security provider potentially opens itself up to additional liability.
Today, as thousands of images flash across the screens in your monitoring center, what can you do to ensure that your operators properly respond to potential problems, and how can you reduce your liability if they don’t? Whether you are considering offering remote video surveillance or already are, you need to understand the legal risks you face.
Know Thy Enemy: Breach of Contract and Negligence
Generally, liability issues associated with remote video surveillance are similar to those faced in providing other types of security services. Typically, actions against your company will be based on a breach of contract or negligence.
Consider the example of a security company that enters into an agreement with a customer to install and remotely monitor video cameras in his or her store.
If the operator monitoring the site observes suspicious activity but fails to respond reasonably to the activity by either investigating further or calling the authorities, and that failure leads to a loss on the part of the store owner, the security company may find itself in court defending an action based on either breach of contract – the security company’s failure to meet the terms of its monitoring contract – or negligence. Where local law permits, these claims may be brought as alternate theories of liability.
Negligence is conduct that falls below the standard established by law for the protection of others against an unreasonable risk of harm. It may consist either of an act, or the failure to act when there is a duty to do so.
To establish that the security company is negligent, the store owner in this example would need to prove: (1) The security company had a duty to use due care in providing remote monitoring services; (2) The security company breached that duty; (3) The security company’s breach of that duty caused the loss sustained by the store owner.
Although it was the monitoring operator and not the security company that failed to act reasonably, liability for the wrongdoing will be imputed to the security company if the operator was acting within the scope of his or her employment at the time of the wrongful act or omission. It may also be possible to establish the security company’s direct liability for the store owner’s loss due to its negligence in hiring, training, assigning or supervising the operator.
Avoiding Claims: The Best Defense Is a Good Offense
The risk will always exist that someone will bring a claim against your alarm company. Nevertheless, you can take an active role in reducing that risk. Using common sense and employing good business practices will go a long way in avoiding potential liability claims.
Customers are less likely to bring claims if you have developed a good relationship with them. Nothing is more likely to send customers to court than the feeling that a security company is unresponsive to their concerns and unlikely to deal with them unless compelled to do so by a judge.
Have a system in place for responding to customer complaints. Listen to your customers and make them feel like they are being heard. Customers can also be a good source of information about the effectiveness of your surveillance operation and the professionalism of your staff. Addressing early expressions of unhappiness of a customer with your monitoring services may alert you to weaknesses in your operation and prevent greater problems down the road.
In conducting your business, you can minimize losses by ensuring your employees are well-trained professionals who comply with all licensing and registration laws. Call references and conduct background checks of all applicants before they join your company.
Once you have employed security personnel, make certain you provide them with suitable training in remote monitoring and that they are well supervised. Have policies in place for remote surveillance, including provisions instructing your employees when intervention is appropriate. To protect yourself from losses that do occur, make sure that you have adequate insurance.
Public vs. Private: Where Do Courts Draw the Line?
With remote video surveillance, respecting privacy rights is an important concern. Proper training and supervision of employees is critical to ensuring images being transmitted and recorded are not subject to abuse. A working knowledge of the privacy issues implicated by video surveillance is necessary for any company offering these services.
With more than 2 million surveillance cameras estimated to exist in the United States, Americans have grown accustomed to the ever-present video camera recording their daily activities. Whether they are using the ATM, shopping for groceries, walking through a shopping mall or driving a car, most people are aware and accept the fact that someone, somewhere may be watching.
However, people often draw a line between acceptable video surveillance, which takes place in public places, and unacceptable video surveillance, which intrudes into areas considered “private.”
In considering cases involving video surveillance, courts have generally respected this line and held that, while an individual has no expectation of privacy in public places, installing and monitoring video cameras in places such as restrooms, locker rooms and dressing rooms violates individual privacy rights. In determining whether a person is liable for invasion of privacy, courts will look to whether a person’s expectation of privacy was reasonable.
Since state laws vary with respect to privacy rights, it is advisable to have an attorney review the law as it applies to your particular business. Legislation currently being considered by Congress would also make secretly videotaping a person in intimate situations without their consent a federal crime.
Another factor courts will consider in evaluating whether an invasion of privacy has occurred is whether the person observed had a subjective expectation of privacy. In other words, did the individual believe his or her actions were private? This subjective element makes the use of signs important in any type of surveillance.
Through the use of clear and visible signs, your company should make people aware that they may be taped and indicate whether or not the cameras are being monitored. If surveillance also involves sound recording, this too should be disclosed.
Once surveillance video has been recorded, you should have a policy in place with employees to make sure such video does not get into the wrong hands. One only needs to tune in to one of the many reality television shows that air nightly to gain insight into the often-lucrative business of video voyeurism. Once an individual sees what they thou
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