Blog - 16/11/2021
Domestic surveillance cameras – the good, the bad and the personal data
How much does your neighbour really know about you? What if they are watching your every step with a piece of modern tech? No, this is not an article about Scopophobia (the fear of being stared at).
A very interesting and previously unprecedented case, involving a good mix of nosy neighbouring, harassment and a breach of data processing has recently been ruled by Oxford County Court. The case has already received its dose of press coverage and public interest as a result.
In Dr Mary Fairhurst v. Mr John Woodard  10 WLUK 151, Melissa Clarke J upheld a claim for harassment and the breach by the Defendant of the data protection laws and awarded the Claimant compensation of £100,000 (which, according to the Defendant’s interview to one newspaper, will likely make him bankrupt), despite dismissing the Claimant’s claim for nuisance.
The parties’ positions
The Claimant’s case was broadly that the Defendant had consistently failed to be open and honest with the Claimant about his security cameras, had unnecessarily and unjustifiably invaded her privacy by his use of the cameras and had intimidated her when challenged about that use. Unsurprisingly, the Defendant denied each aspect of the claim and claimed to have installed and used the security cameras in good faith, to deter burglars.
The Court relied on the Protection from Harassment Act 1997 and related case law, when it decided to award the Claimant compensation for the Defendant’s harassment. The judge also found the Defendant to be in breach of data processing laws under the Data Protection Act 2018 and UK GDPR. The court, however, rejected the claim for nuisance caused by loss of privacy on the basis of last year’s decision in Fearn and others v Board of Trustees of the Tate Gallery  EWCA Civ 104, in which the Court of Appeal held that mere overlooking from one property to another is not capable of giving rise to a cause of action in private nuisance. Although the Fearn case was heavily criticised and may be overruled in future, Melissa Clarke J was bound to follow its decision.
Time to panic?
First of all, it should be noted that this is only a County Court case. It is therefore not binding on higher courts. So despite the media labelling it a “landmark” ruling, the case strictly speaking sets no precedent.
As is often the case, this ruling largely turns on its own facts. For instance, the fact that the Defendant was found to not be a credible witness, whom the judge found untruthful who was never transparent with the Claimant about the devices he had installed and their capabilities. On several occasions he told completely different things to the Claimant, other neighbours, his lawyers and the court.
According to the evidence, the Defendant had also threatened the Claimant, including making a threat to install more security cameras: the Defendant said that if the Claimant did not like his current cameras, “she would enjoy some of his future surveillance projects even less” and that he was going to install cameras “good enough to see the colour of her eyes”. The Claimant felt the need to move out of her home as a result of feeling constantly monitored by the Defendant.
Whilst it may seem obvious that one should not harass and threaten one’s neighbour, the takeaways with regards to data privacy concerns caused by domestic CCTV devices are worth paying attention to.
If you are thinking of installing CCTV on your premises which might include one of the commonly available video doorbell devices, you need to ask yourself the following questions:
- Have I adjusted the video only to oversee my home boundary, avoiding anyone else’s land? If so, the household exemption will apply under the UK GDPR.
- Am I recording the audio as well as video? The use of audio, as well as video will be more difficult to justify and may be seen as an unnecessarily invasive breach of privacy. The latest updates of the Amazon Ring devices allow users to turn off audio recordings.
- If you really must install a camera that overlooks your neighbour’s boundaries, talk to them first and make sure you note their response before you go ahead with the installations. Be very clear and transparent about any personal data that you may collect with your devices.
To sum up, although the current judgment is not binding, it may be just the beginning of a multitude of similar cases. In order to avoid any such claims succeeding against you, you need to be mindful of your neighbour’s privacy rights under the UK GDPR.
According to the UK GDPR, personal data are any information which are related to an identified or identifiable natural person. In the present case, the CCTV recordings captured the Defendant’s neighbours on video and audio, thus making these people identifiable. The Defendant, therefore, was subject to the UK GDPR’s data processing rules.
Generally speaking you are unlikely to be entitled to process other people’s personal data on your home devices, even if you believe you have a legitimate purpose in doing so – their right to privacy is highly likely to override your right to process data for home security purposes.
If you have any questions or would like to discuss your concerns about any aspect of data protection and privacy, please contact any member of the Intellectual Property team.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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