HHJ Clarke has recently handed down judgment in Oxford County Court in respect of a dispute between two neighbours, Mr Woodard and Dr Fairhurst.
The dispute arose after Mr Woodard installed a number of security cameras around his home and a Ring Doorbell. All of the cameras and the doorbell record video and sound. Dr Fairhurst was disturbed by the location and direction of the various cameras, one of which pointed directly at her property and did not capture any of Mr Woodard’s property at all. Dr Fairhurst pursued a claim against Mr Woodard alleging harassment and a breach of data protection legislation.
The principles in respect of harassment have been around for a considerable period of time and accordingly, we will not focus too heavily on that aspect of the claim. In essence, in order to establish harassment, you must be able to show that an individual has undertaken a course of conduct (i.e. two or more incidents) that he/she knows, or ought to know, amounts to harassment.
There is a defence in the Protection from Harassment Act 1997 that the course of conduct was pursued with a view to the prevention or detection of crime. Whilst this defence seems appropriate in the case of Mr Woodard’s security cameras, HHJ Clarke, in finding that Mr Woodard’s conduct amounted to harassment, stated:
“Did the course of conduct not amount to harassment because it was (i) pursued for the purposes of preventing or detecting crime; and/or (ii) in the particular circumstances, reasonable? This is where Mr. Rushton focussed his submissions for the Defendant. He submits that the Driveway Camera was installed for the purposes of preventing or detecting crime in circumstances where the Defendant had just had a terrifying encounter with a gang of criminals.
In closing, he submitted that the Claimant showed “no understanding or compassion of how the theft of his security device affected him” and deprecated the Claimant for showing him no empathy for his true motive in installing it. This sounds to me like victim-blaming.
The Court is unimpressed by arguments that women who are being bulldozed and intimidated by men should show them empathy and understanding for the circumstances which ‘made them’ do it. Mr. Rushton submits that the Defendant’s actions were reasonable within the factual matrix of this terrifying incident, and the Claimant was “unduly sensitive”. I strongly disagree.”
The interesting part of the judgment relates to the application of the principles set out in the UK GDPR.
It was not disputed that UK GDPR applied to Mr Woodard in respect of him gathering images and recordings using his home security system. The principles focussed on by the Judge, in the case, were in respect of whether:
- The purpose that the data was gathered was transparent to the person whose data is collected; and
- The personal data “shall be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed”.
In respect of transparency, the Judge found that Mr Woodard had actively tried to mislead Dr Fairhurst in respect of the data processed and accordingly found Mr Woodard in breach of the rule in respect of transparency.
Mr Woodard’s defence was again focussed on the legitimate interest of prevention of crime on or against his property. The Court accepted that this was a legitimate interest to protect but that it must be balanced against the rights of Dr Fairhurst to privacy in and around her home. The Judge analysed the video feed of the different cameras around the property and made different findings in respect of each. By way of example, below is some of the extracts of the findings she made:
“I consider that the balance between the legitimate interests of the Defendant and the right of the Claimant to privacy and home life are met in relation to the processing of video personal data from the Ring Doorbell, and I am so satisfied. That is because any video personal data of the Claimant is likely to be collected only incidentally as she walks past unless the Claimant stands on the Defendant’s door and rings his doorbell.
I consider that his legitimate interest in protecting his home whether he is there or not is not overridden by her right to avoid such incidental collection on a public street, albeit in the vicinity of her home…
In relation to the Driveway Camera which was trained on the Claimant’s property including her side gate, garden, and her car parking spaces, I do not consider that the Defendant has satisfied me that this is necessary for the purposes of his legitimate interests. The Driveway Camera only collects data from outside the Defendant’s property; it does not view his cars or shed or anyone approaching his property from the front or rear.
Therefore, it is not legitimate for the Defendant to carry out video and audio surveillance of a road leading to a car park used by others in which he maintains two parking spaces could be protected in a lesser way that does not sacrifice the privacy of the Claimant and the other users of the Driveway, for example by a camera that does have a close focus on only the cars in his parking spaces.
The Defendant says that he could not afford a camera with a more restricted view but he puts no evidence about the cost of any such system before the court which presumably, as an audio-visual specialist, he would not find difficult to do, nor any evidence about his finances.
I note he has a high-performance Audi that he is seeking to protect so it seems unlikely that cost is an issue. If I am wrong about that, I consider that such interests are overridden by the Claimant’s right to privacy in her own home, to leave from and return to her house and entertain visitors without her video personal data being captured.
Again, the audio personal data collected and processed by means of this Driveway Camera is even more problematic and detrimental than video data in my opinion. For those reasons I am satisfied that the Defendant’s processing of the Claimant’s personal data by means of the Driveway Camera is not lawful.”
She also made an overarching finding in respect of the audio of the security system stating as follows:
“In relation to the audio personal data collected by the Shed Camera, Driveway Camera, and Ring Doorbell, I remind myself of the third principle, that personal data “shall be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed”. This is the data minimisation principle.
I am satisfied that the extent of range to which these devices can capture audio is well beyond the range of video that they capture, and in my view cannot be said to be reasonable for the purpose for which the devices are used by the Defendant, since the legitimate aim for which they are said to be used, namely crime prevention, could surely be achieved by something less.
A great deal of the purpose could be achieved without audio at all, as is the case with the bulk of CCTV systems in use in public places in this country, or by a microphone that only picks up sound within a small diameter of the device. That finding means that I am satisfied that the processing of such audio data by the Defendant as the data controller is not lawful.
The extent of the range means that personal data may be captured from people who are not even aware that the device is there, or that it records and processes audio personal data, or that it can do so from such a distance away, in breach of the first principle. The Claimant has fallen into each of these categories during the relevant time.
The living individuals whose conversation it captures may well be identifiable from the data itself or from other information which can be obtained from the data controller particularly in a case such as this where the Defendant knows and is familiar with his neighbours and can probably identify many of them by voice alone, and certainly identify them with both the audio and video data that these devices capture.”
Data protection considerations when operating a Ring Doorbell or similar security system
Given the content of this detailed and thorough judgment and the fact that it is very clear that the data protection legislation applies to private individuals with CCTV systems, those considering installing a CCTV system on their property, whether it be a Ring system or any other, should seriously consider:
- The location that they put the cameras;
- The direction of those cameras; and
- The range of any audio recording function.
How Nelsons can help
Should you be affected by a dispute involving a security system, please feel free to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.Contact us