The case against covert monitoring

As the availability of smarter and more discreet monitoring technology increases, the temptation amongst particularly safety conscious superyacht owners could be to up the level of monitoring on board. While monitoring can be great in reassuring both owners and crew, are both parties fully aware of the nuanced legal repercussions of this type of surveillance?

“We always advise owners, captains and management companies to be upfront about monitoring and include details about any monitoring that will take place in crew’s employment contracts,” comments Melanie Hart, partner at the law firm Ince. “There are two types of monitoring we encounter and the the legal considerations for each can be very different.

Firstly, there is the usual type of open monitoring that goes on board, CCTV and other video/audio recording, which is often, although not always, referred to in an employment contract – we always advise to be upfront about this. Careful consideration should also be given as to how long any footage is kept as it is personal data under most countries data protection laws, which a lot of people are unaware of.”

The second aspect, according to Hart, is monitoring that is done covertly: “owners, very naturally, desire privacy but some may also have concerns or even paranoia regarding what is happening on their yachts” she explains “and it is so easy and discreet to do now. Covert CCTV was previously much more expensive with wiring needing to be embedded within the yacht structure. Now covert systems are miniscule and can be installed without any technical expertise.”

“There isn’t a one size fits all rulebook”

So, what are the consequences if you were to capture someone doing something illegal while covertly filming? “It all depends on the jurisdiction,” explains Hart. “In jurisdictions where they have privacy rights, like the UK, then there is an argument that without justification you are breaching people’s privacy and the subject could bring privacy and/or data protection claims. In some courts/jurisdictions, any data obtained covertly is inadmissible and can’t be used as evidence, although this is not necessarily the case everywhere (including in the UK). This can be frustrating for owners which is why we generally advise against covert monitoring.”

However, this is all dependent on the local jurisdiction. “There isn’t a one size fits all rulebook,” concludes Hart. “Owners and Captains need to really look in detail into the jurisdictions where the yacht will be cruising, where the yacht is flagged and the employment law which governs the crew’s contracts. There are increasing arguments about the duty of care which management companies (and owners) have towards the crew they employ and their responsibility to inform them of relevant regulations, and monitoring.”

This is an interesting consideration for any individual contemplating installing surveillance on board. While it can appear to be an ideal solution for any fearful owner, covert monitoring can often fail to resolve any issue and leaves the owner frustrated. The overriding conclusion to be drawn from Hart’s advice is that honesty is definitely the best policy when it comes to observing activity on board.

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