by Wanjiku Karanja

A legitimate concern for working parents is the safety of their child at the hands of their caregiver, while the parents are away at work. This fear has become more solidified with the increased reporting of cases of abuse of children at the hands of their caregivers or nannies. Parents are increasingly installing nanny cameras in their homes to discretely record the actions of their caregivers while they are away at work.
The “Nanny Camera” is a colloquial term used to describe a small hidden camera that is installed in homes, by parents, for the purposes of: monitoring a babysitter/caregiver, so as to ensure that their child is not being abused or for the prevention of theft. A nanny camera is often disguised in everyday objects, such as teddy bears. They are often wireless and transmit a signal to a receiver connected to a Digital Video Recorder (DVR) or Video Camera Recorder (VCR) or even directly to the parents computer, tablet or cell phone via the internet.
Recently the video captioned above of a nanny brutally assaulting a toddler went viral on social media, generating widespread anger and shock at the brutality of the nanny’s actions. The child’s parents who upon observing injuries on their child, installed a nanny camera in their sitting room to record their nanny’s activities. Following the above recorded footage, the nanny in question was arrested and charged with torture under the Ugandan Anti-Torture Act and later convicted of the crime and sentenced to a term of 4 years in prison.
While this case brought to the forefront the concerns of many working parents of their children’s safety when left with caregivers in homes, it also raises several constitutional and legal issues.
The use of nanny cameras is a contemporary issue and Kenya has not enacted specific legislation that addresses it. Therefore when establishing the legality of nanny cameras, the reliance is primarily on precedents from other jurisdictions although there are some important provisions in the Kenya Constitution.
The use of hidden cameras in the workplace is generally legal as long as the company has a legitimate need to film, the areas under surveillance are public, and employees know about the filming. In the case of nanny cameras however, the parent’s home serves as the “workplace” of the caregiver. This then raises the question: is there an expectation of privacy in the homes of others?
Courts have addressed this issue as seen in the case of State v Diaz 706, A. 2d 264 (1998), where the Court answered this question by stating that the United States’ Constitution did not protect the nanny’s privacy in someone else’s home and as such there is no expectation of privacy in another person’s home. The installation of a hidden camera by parents in their home does not amount to an invasion of privacy.
There is a however a caveat attached to this position as: the installation of the nanny cameras must be for a legitimate purpose i.e. the monitoring of the nanny with the intent of thwarting any possible child abuse,
This is because the right to privacy, as protected by Article 31 of the Constitution of Kenya, can only be limited by an overriding legitimate interest such as the need to protect the safety of a child. This interest is protected by the Constitution, which, in Article 53(1d), provides that every child has the right to be protected from abuse, neglect, all forms of violence and inhumane treatment and punishment.
Installation of nanny cameras must also be done in common places of the home where someone has no reasonable expectation of privacy. Installation in private areas such as bathrooms used by the nanny would amount to invasion of privacy. The nanny cameras should also not be used for voyeurism, blackmail, and dissemination of private information to the public or for any other commercial purpose.
Some nanny cameras have an audio capability but the use of this feature complicates the issue as some laws e.g. the Wiretap Act, prohibit the recording of speech without the consent of the parties. The rationale behind this is to prevent the possible use of audio in a surreptitious manner and the recording of audio through a hidden camera qualifies as such.
The proposed Kenya Data Protection Bill (2013) also limits the extent of protection afforded to personal data, relating to a living individual who can be identified from that data (footage recorded), by Article 31 of the Constitution of Kenya, for the purpose of safeguarding legitimate interests under which the protection of children falls as previously discussed.
The question which remains is: what recourse do caregivers have against parents who install nanny cameras? Nannies have a right to full disclosure of the particulars of their employment but it is difficult to compel parents to inform them of the hidden nanny cameras. The only available recourse would arise when the nanny cameras are installed without a legitimate purpose and are used to infringe on the caregiver’s right to privacy. In such a situation, a nanny may institute a tort for invasion of privacy due to an unreasonable intrusion upon the seclusion/solitude of another.
In conclusion, while the installation of nanny cams is attractive to many parents it is important to consider the ethical implications of filming someone without their consent or knowledge. It may result in the damaging of the employee–employer relationship between the parents and the nanny. It is therefore important to: assess the effect that the surveillance system may have on personal privacy and ensure that the camera system minimizes the privacy intrusion to that which is absolutely necessary to achieve its lawful goals.