£17,000 damages awarded by Scottish court in neighbour CCTV dispute

An Edinburgh couple have been awarded £8,634 each by a Scottish court as a result of round-the-clock extremely intrusive CCTV surveillance that had been carried out by a neighbour over a number of years.

Factual background

Mr and Mrs Wooley are a married couple who have lived with their adult son in the upper flat of a semi-detached house in Edinburgh since 2012.  Mrs Akram runs a guest-house business in the lower portion of the building, and has done so since before Mr and Mrs Wooley bought their property.  Her husband is the manager of the business, however neither of them live at the property.

Initially the Wooleys and the Akrams had a cordial relationship, however that relationship soured after Mrs Akram’s application to Edinburgh City Council to turn her guest house into a bail hostel for up to 18 people awaiting trial was refused in April 2013.  The Wooleys had opposed the application and had submitted evidence highlighting their concerns.

Soon afterwards, in October 2013, Mrs Akram installed CCTV monitoring equipment on the external wall of the property, in addition to audio recording facilities.  Both systems operated 24 hours a day and were set to permanently record.  The system could record data for five days, after which the oldest footage was overwritten.  Cameras at the front of the property recorded all individuals approaching the Wolleys home and, until April 2015, there was also a camera at the rear of the property recording the Wolleys private garden.

The Judgment

In the judgment of Sheriff N A Ross in Wooley & Wooley v Nahid Akbar Or Akram [2017] SC EDIN 7 the Court in Scotland held that Mrs Akram was in breach of the First, Third and Fifth Data Protection Principles of the Data Protection Act 1998 (‘DPA’).

The Court concluded that the data processing was neither fair nor lawful (in breach of the First Data Protection Principle).  No notices were put up alerting visitors to the recording and no sufficient reason or justification was given for it.  The Wooleys were provided with no information which set out who had access to the data, for how long it is kept or for what purpose.  Furthermore, none of the conditions listed at schedule 2 of the DPA had been met.

The nature of the data processing was deemed to be extravagant and unjustified and the Court held that it was “evidently an effort to oppress.”  The data processing was therefore found to be in breach of the Third Data Protection Principle.

The Court also found that Ms Akram was in breach of the Fifth Data Protection Principle.  It found that the footage should have been deleted on a daily basis and there was no justification in retaining the data beyond that.

The Court accepted the evidence from the Wooleys that they were extremely distressed by the permanent presence of the CCTV recording devices.  As a result they had decided to restrict their external movements in and around their own property.  The fact that Mr Akram could view the recorded footage from a remote location was described as “disturbing”.  The Court also found that Mr Akram had taken the “sinister” decision to text Mrs Wooley to tell her that she knew her daughter was in the house.  Given that the Wooleys were living in constant fear that the privacy of their family home was being violated, the Court concluded that “it is difficult to imagine a more intrusive use of surveillance equipment.”

Damages

The Court referred to the Court of Appeal decision in Google Inc v Vidal-Hall & Others [2015] EWCA Civ 311 (previously considered by the Brett Wilson Media Law blog here), and therefore held that the Wooleys were entitled to compensation for the breach of the DPA even though they had only suffered distress (and not any financial loss).

The Court accepted there was limited guidance to assist it in calculating the appropriate level of compensation that would be due.  It accepted the Wooleys’ method of calculation, which was the nominal amount of £10 per person per day, multiplied by the number of days on which the data processing had taken place (excluding one month a year when they would be away from the property, e.g. on holiday).

Conclusion 

The Court commented that it would be helpful if there was a more authoritative decision and guidance on the methodology of calculating damages in distress-only DPA claims.  Whilst that would no doubt be of assistance to practitioners, this case is notable because of the fact that the Court was willing to award damages based on the accumulation of a nominal daily sum.  The total damages award was therefore relatively high (in the context of DPA claims) because of the length of time that the surveillance had continued for, however in many situations it is likely to be more advantageous for claimants to seek a lump sum award.

The case highlights how data protection law applies to CCTV systems and other forms of surveillance.  On a more general level the claim is a good example of how a data protection claim can be brought for distress following the decision in Google Inc v Vidal-Hall.

Click here to found out how Brett Wilson privacy solicitors can assist you if your personal data has been misused.