An Invasion Of Privacy? What Landowners Need To Know About Video Technology – Privacy

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To print this article, all you need is to be registered or login on Mondaq.com. Following a well-publicised county court decision on video technology and privacy, Pauline Lam and Michael Stacey discuss what landowners need to be aware of. The past decade has seen an explosion of affordable video […]


To print this article, all you need is to be registered or login on Mondaq.com.

Following a well-publicised county court decision on video
technology and privacy, Pauline Lam and Michael Stacey discuss what
landowners need to be aware of.

The past decade has seen an explosion of affordable video
technologies. CCTV and video doorbells linked to our smartphones
are commonplace, and drones are available for less than £100.
These raise new privacy and data protection implications which
landowners need to consider. Privacy arguments are also
increasingly a new front in disputes between neighbours.

Fairhurst v Woodard

The recent decision
in Fairhurst v Woodard (unreported,
Oxford County Court, 12 October 2021) concerned claims for
harassment, nuisance and a breach of the Data Protection Act 2018
against a neighbour. The parties used a shared driveway to a car
park situated behind their respective houses and rear gardens. The
defendant installed four motion-activated cameras with audio
recording capabilities. These included a camera with floodlight
mounted on another neighbour’s wall pointing towards the
shared driveway and the claimant’s side wall and garden
wall.

Witness evidence suggested that two of the cameras could record
audio up to a distance of 53 feet and 68 feet respectively. Live
feeds were available to the defendant on his mobile phone or smart
watch and he shared images in a neighbourhood watch WhatsApp group.
The claimant argued that the defendant had consistently failed to
be honest with her about the cameras, that he had unnecessarily and
unjustifiably invaded her privacy by his use of these cameras and
that he had intimidated her when she challenged him. The
defendant’s actions caused her such distress that she left
her home. The defendant denied these claims and argued that he
installed his surveillance system to protect his property.

The judge found that the defendant’s conduct amounted to
harassment. She also ruled that he had breached the 2018 Act and
found the extent of the audio recording capabilities of the cameras
detrimental. However, the judge dismissed the claim of nuisance for
loss of privacy as she was bound by Fearn and
others
 v Board of Trustees of the Tate
Gallery
 
[2020] EWCA Civ 104
; [2020] EGLR 14 (currently being appealed
to the Supreme Court).

Implications for private landowners

A domestic CCTV installation probably makes the householder a
data controller for the purposes of the 2018 Act and the General
Data Protection Regulation.

The Information Commissioner’s Office has issued guidance
that where domestic CCTV captures images outside the boundary of
the home, the operator is subject to the 2018 Act and GDPR. This
guidance is based on a European Court of Justice decision that
where domestic video surveillance covers a public space, even
partially, the exemption covering private individuals who process
personal data for “purely personal or household
reasons” does not apply.

In practice, most users of video doorbells are likely to capture
images beyond their property boundary. Many will have no idea that
they are subject to these requirements. Private landowners should
review the ICO guidance and consider how their device(s) could
impact their neighbours’ right to privacy.

The obligations on a data controller operating CCTV are
significant and include, for example, displaying a sign warning
that recording is taking place, keeping records of how and why
images are being captured, ensuring that the camera angle captures
no more than is necessary to achieve your legitimate purposes,
ensuring the security of the footage, only keeping the footage for
as long as it is needed, responding to any data subject access
requests received and considering objections raised from
individuals whose images are captured.

In Fairhurst, the judge considered that the extent
of the audio capture was more problematic than the video data.
Landowners should therefore consider whether audio capture is
necessary.

Leaseholders should check whether the location where they plan
to install the device would fall within their demised premises,
whether their landlord or freeholder’s consent is required,
and if the installation may constitute a trespass should the
location fall outside of their property as described in the
lease.

Implications for owners and occupiers of commercial
premises

Although this decision involved private individuals, owners and
occupiers of commercial premises should carefully review their
obligations and risks when installing video surveillance
systems.

Businesses will clearly be data controllers in respect of
CCTV/video surveillance cameras and should ensure that they follow
the ICO guidance.

The Protection from Harassment Act 1997 has been held to apply
to companies. Intrusive and disproportionate video surveillance of
an individual may amount to harassment by a business, even if this
is incidental to a legitimate purpose of protecting business
premises. It is particularly important to ensure that any
objections are properly considered.

Drones

The increasing use of drones in both a commercial and domestic
context also raises nuisance and privacy issues. While there is
guidance from the ICO and the Civil Aviation Authority on the
operation of drones, this is an expanding area.

Currently, there is no requirement for operators of smaller
drones with a weight of less than 250g to be registered unless they
are fitted with a sensor capable of capturing personal data, such
as a camera, that is not a “toy”. A recent study made
various recommendations for the regulation of drones, although in
relation to privacy and noise considerations this was only that
they should be tracked in light of increased drone use. The
CAA’s update of its Drone and Model Aircraft Code in November
2021 added listening devices and sound recording to its privacy
section.

An evolving picture

Legal and regulatory requirements are still developing in
response to the evolution of these new technologies and their more
widespread adoption. Anyone using smart cameras or drones should
mitigate the risk of unwelcome complaints or litigation by
considering the potential implications for the privacy of others at
the outset, and seeking to minimise any intrusion from their use
for legitimate personal or business purposes.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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