Neighbour CCTV harassment and data protection claim succeeds

Introduction

On 12 October 2021, Oxford County Court handed down judgment in Fairhurst v Woodard (Case No: G00MK161).  A dispute between neighbours over the use of cameras for security purposes, the case gave rise to successful claims in harassment and data protection, and offers an important note of caution for those looking to install surveillance systems to protect their homes.

The facts

The Claimant Mary Fairhurst lives at Number 83 Cromwell Road and the Defendant Mr Jon Woodard lives on the same side of the road at number 87.  Mr Woodard had placed several cameras around his property, including a 'Ring' doorbell that had both video and sound recording capabilities, and a camera on the top of his garden shed overlooking a communal car park.  With permission, he had also placed a camera on the gable end wall of number 85’s property (the ‘driveway camera’), which overlooked a shared access road leading to a communal car park.  Throughout proceedings, Mr Woodard maintained that the cameras were installed for security purposes.

The dispute arose after the Defendant had shown the Claimant his shed camera, and had apparently boasted to her that he could view footage from it at any time via his mobile phone or smartwatch.  The Claimant was alarmed at the Defendant’s apparent disregard for others’ privacy and several incidents followed which crystallised the Claimant’s concerns.  For example, on one occasion, Mr Woodard sent the Claimant images of her taken from the driveway camera – in what the judge later determined was a veiled threat - claiming that there was a ‘suspicious stranger’ loitering near his property.  At various times, Mr Woodard had lied to the Claimant, suggesting that the cameras were not operational when in fact they were.  As the relationship between the two became more strained, the Defendant even threatened to set up concealed cameras on his property.

By the time of trial at Oxford County Court, the Claimant’s case was that the Defendant consistently failed to be honest with the Claimant about the cameras, had invaded her privacy without justification by his use of the cameras, and had intimidated her when challenged about that use and that this amounted to, inter alia, harassment and a breach of the Claimant’s rights under the Data Protection Act 2018. The Claimant sought damages and injunctive relief.  A collateral claim was brought under the tort of nuisance.

Harassment

HHJ Clarke held that the Defendant’s conduct amounted to harassment within the terms of the Protection from Harassment Act 1997.  The Defendant had engaged in a course of conduct and on several occasions he had communicated with the Claimant in a way designed to intimidate or scare her.  A reasonable person, the Court concluded, would have known that the Defendant’s conduct amounted to harassment.

The Judge also rejected the Defendant’s submission that the cameras were in place for the purpose of preventing or detecting crime, a defence under section 1(3)(a) of the 1997 Act.  The Defendant had placed considerable emphasis on this point to justify his use of the cameras, citing an episode where thieves had attempted to steal his car as evidence of the cameras’ necessity.  HHJ Clarke was unconvinced.  She dismissed the Defendant’s justification as amounting to essentially “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.”  

Data protection

Section 3 of the Data Protection Act 2018 defines personal data broadly as “any information relating to an identified or identifiable living individual.”   The Claimant argued that images and audio files of the Claimant are personal data within the meaning of Article 4(1) of the General Data Protection Regulation 2016/679 and that the Defendant had retained and processed such data unlawfully.

The Defendant submitted that all of his data collection and processing was necessary for the purposes of crime prevention at his property.  Thus it was left to the Court to determine the appropriate balance between on the one hand, the Claimant’s interests in protecting her personal data and the Defendant’s interest in securing his home on the other.

HHJ Clarke ruled that the Defendant had misled the Claimant over the functionality of the cameras and that this amounted to a breach of the requirement under Article 5(1)(b) the GDPR that data only be collected for 'specified, explicit and legitimate purposes'.

Further to this, the Judge made specific findings regarding the use of each of the cameras. Regarding the Ring doorbell camera, the Court drew a distinction between its video recording capabilities and its audio capturing capabilities.  Concerning the former, the judge held that the balance was struck appropriately between the legitimate interests of the Defendant in preventing crime at his property, and the Claimant’s right to privacy: images of the Claimant were only likely to be captured incidentally as she walked past, and the Defendant’s ‘legitimate interest in protecting his home…are not overridden by her [the Claimant’s] right to avoid such incidental collection on a public street.’

However, the Judge ruled differently on the question of the Ring's doorbell camera’s audio recording capabilities.  The Claimant presented evidence to the Court suggesting that the camera was able to capture audio from over 60ft away, far beyond the boundaries of the Defendant’s home and covering a radius encompassing nearly the whole of the Claimant’s property.  The Court found that this was entirely disproportionate to the needs of protecting the Defendant’s home.  Indeed, the Judge suggested that the security needs of the home may be adequately served if the doorbell camera had no audio capabilities at all.

The Court determined that the use of the driveway camera to capture video and audio was unlawful and without justification.  It only collected data from outside the Defendant’s property and there were other, less intrusive ways that the Defendant could ensure his cars (parked in the communal car park) could be kept safe.

Nuisance

The nuisance claim failed for two reasons.  Firstly, the Judge considered she was bound by Fearn & Ors v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104, in which the Court of Appeal held that the mere overlooking from one property to another was not capable of giving rise to a cause of action in private nuisance.  Secondly, in respect of the triggering of a light on the driveway camera visible through a conservatory roof, the Judge accepted that whilst this could be irritating, it was not an undue interference with the Claimant's enjoyment of her property, particularly taking into account that she lived in a town rather than a country (where night-time lights were a feature).

Remedy

The Judge has invited further submissions from the parties on the appropriate remedy (i.e. the terms of any injunction and the level of damages) following consideration of her findings.  The Claimant will no doubt be seeking an order prohibiting the processing of her personal data in the manner complained of and prohibiting similar harassment.  The Mail's rather sensationalist report on the story ('Could EVERY doorbell camera owner face £100,000 fine after landmark ruling? How inadvertently filming neighbours and storing footage breaches their privacy under new data protection laws') suggests that the Claimant might have been seeking damages of up to £100,000, although it is possible that this figure also includes legal costs.

Comments

Staying with The Mail article, it is important to correct a few matters that have been misreported:-

• A damages award is not a 'fine'.  The Defendant has not been convicted of a crime and will not be 'sentenced'.
• The term 'new data protection laws' is misleading.  Whilst the claim was brought under the Data Protection Act 2018, the relevant law under the Data Protection Act 1998 was very similar and would almost certainly have led to the same result.
• This claim was also brought in harassment and the conduct was said to be targeted.  This element of the claim succeeded.  The damages award is likely to reflect this.  Thus, contrary to the Mail headline, the filming was not 'inadvertent'.  Whilst inadvertent filming may attract an award of damages under data protection legislation, the sum awarded is likely to be somewhat lower than when the filming is also found to be part of a course of conduct that amounts to harassment.
• Whilst the claim concerns issues which will affect many, describing the decision as a 'landmark ruling' is an exaggeration.  County court decisions are not binding and do not establish legal precedent per se.  The outcome of the case is not surprising.  Indeed, there have been previous cases concerning domestic CCTV/neighbour disputes (e.g. see here for example) and the Information Commissioner's Office has for many years warned that the improper use of CCTV may breach data protection legislation.

Nevertheless, the rise of relatively affordable home surveillance technology (now with sensitive audio capabilities) suggests that the courts will be dealing with more cases of this type in the future. The judgment is a reminder that if you are using or planning to use cameras to protect your home, you need to consider your neighbours’ counterbalancing rights to privacy. How can you do this? Each case is fact-sensitive, but HHJ Clarke's judgment suggests that any video or audio recording capabilities should have a range not greatly exceeding the boundaries of an individual’s property.  On the latter, it is notable that the Judge found that the audio data could capture conversations “even more problematic and detrimental than video data”.  The judgment also makes clear the need to be open and transparent with neighbours about the operation and scope of any audio or video recording equipment.

Following the judgment, Amazon (the parent company of Ring LLC) issued a statement to Ring customers: “We strongly encourage our customers to respect their neighbours’ privacy and comply with any applicable laws when using their Ring product” and indicated that there were privacy settings on its devices including an “audio toggle” to turn sound recording on and off.

Click here to find out how Brett Wilson LLP's privacy solicitors can assist you if your privacy or data protection rights have been breached or you have been accused of a breach.