14 February, 2017
Last month, a court in Edinburgh decided a case where damages were sought for breaches of the Data Protection Act 1998 (DPA) in relation to the use of CCTV and surveillance equipment by neighbours. Whilst the decision was made in Scotland, it is not binding on courts in England and Wales, the case considered a number of interesting points and could potentially be persuasive for courts in England and Wales.
In the case of Woolley & Woolley v Akbar or Akram  SC EDIN 7, the pursuers issued a claim for damages for breaches of the DPA. Both parties owned properties in the same building, one above the other. In 2013 the relationship between the parties broke down. Allegations and counter allegations were made against each other in relation to the use of the properties, and both parties were the subject of earlier court proceedings.
After their relationship broke down, both parties installed CCTV. However, the defender's CCTV cameras were deliberately set to cover the pursuers' private property whilst the pursuers' CCTV recorded images of their own external property only. In addition, the defender's CCTV recorded audio as well as images and the cameras had an ability to pick up conversations well beyond the pursuers' property. The defender's CCTV system was installed without notice, consultation or information. She did not inform the pursuers of the purpose or extent of coverage. Visitors to the property received no notice that their actions and speech were being recorded.
The court found that the data processing by the defender's CCTV system was intrusive, excessive and unjustified. The CCTV system was unnecessary in relation to any legitimate purpose and the defender failed to observe a number of principles of the DPA. This included failure to register with the Information Commissioner as a data controller until 2015, the processing was not fair or lawful, the surveillance was highly intrusive and was not limited in any way, no adequate justification had been given for the surveillance and the data collected was kept for longer than was necessary.
The pursuers were awarded nearly £17,000 in compensation for the breaches of the DPA. This was calculated at a rate of £10 each per day for the period of time in which the CCTV was in place, with a discount for periods of time when the pursuers were away from the property.
This case highlights the problems CCTV can cause neighbours and is often a common complaint received by landlords. The use of cameras for limited household purposes is exempt from the DPA providing that the surveillance is limited to the user's own property. If the surveillance covers areas beyond the boundaries of the user's property, such as neighbouring gardens or the street, then the user may be unable to rely on the exemption and the surveillance will be governed by the DPA.
In this case, the court found that the defender could not rely on the domestic use exemption and was therefore required to notify the Information Commissioner that they were a data controller and comply with the principles of the DPA.
Whilst this case was heard in Scotland, it raises familiar issues and highlights the need to be aware of the DPA principles when using CCTV. Whether or not the CCTV is for domestic use, you must ensure the use of CCTV is justified, necessary and proportionate. Guidance from the Information Commissioner states that audio recording is particularly privacy intrusive and in the vast majority of cases where CCTV is being used on domestic properties it should be disabled, a view which was also upheld in this decision.
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