In Fairhurst v Woodard (12 October 2021) a County Court judge has ruled that surveillance equipment installed at a private residence breached a neighbour's data protection rights.
The defendant had installed a Ring Video doorbell, a Ring Spotlight Camera on his garden shed, a second Ring Spotlight camera pointing down a shared driveway towards a shared car park (but with a line of vision into the claimant's side gate and garden) and a final camera inside his front windowsill. The witness evidence suggested that the Ring Spotlight Camera could reliably record speech from about 53 feet away and that the Ring Video Doorbell could record speech from about 68 feet away.
The claimant was a neighbour of the defendant. The claimant felt that the cameras were intrusive but the defendant responded in a relatively hostile manner towards the claimant's attempts to discuss them with him. Ultimately, the claimant moved out of her home stating that she did not feel safe there any more. Following this, she then brought proceedings against the defendant for breach of her rights under the Data Protection Act 2018 ("DPA") and the General Data Protection Regulation ("GDPR"), for harassment under the Protection from Harassment Act 1997 ("PHA") and for nuisance.
Findings and judgment
The judge upheld the claims for breaches of the DPA and harassment but rejected the claim for nuisance. In this article we focus on the data protection issues and also found.
The judge found that some of the defendant's equipment would record movement on the claimant's property including her driveway, some of her garden and her parking spaces and that conversations at the claimant's front door, on the pavement in front of her house and on her driveway were susceptible to being heard and recorded.
The judge concluded that the images and audio recordings were personal data and that the defendant was a data controller for the purpose of the GDPR. As a result the defendant was required to comply with the data protection principles, including the requirements to process personal data fairly, lawfully and transparently.
The defendant argued that his collection and processing of the claimant's personal data was necessary for the purposes of crime prevention.
The judge concluded that the defendant had not been transparent about his processing and that the balance between the defendant's legitimate interests and those of the claimant weighed in favour of the defendant in relation to the video footage recorded by the Ring doorbell (as this would only collect data about the claimant as she walked past on the street and her right to avoid such "incidental collection" was overridden by his right to protect his home). However, the position was different in relation to the video footage from the camera which recorded movement on the shared driveway used by the claimant. This only collected video data from outside the defendant's property. The Judge said that "...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...when his cars and property could be protected in a lesser way that does not sacrifice the privacy of the Claimant and other users of the Driveway, for example by a camera that does have a close focus on only the cars in his parking spaces.".
In relation to the audio data, the Judge said that she was satisfied that "....the extent of range to which these devices can capture audio as well is well beyond the range of video that they capture, and...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....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".
This judgment has attracted a volume of media attention that perhaps exceeds its legal significance. It should also be remembered that this was a County Court decision and is therefore not binding on higher courts. It is notable that the Judge was unimpressed by the defendant's evidence and that the defendant used more equipment more extensively than many people might.
In many ways the judgment is a fantastic advertisement for the capabilities of Ring's security systems. However, it also highlights the issues that can be raised when technology is racing ahead of law and regulation. Such is the sensitivity of this type of equipment that care will need to be taken by people and businesses who use it to make sure that its use does not infringe the rights of others. In particular users should ask themselves what areas they actually need to cover with cameras and whether they need to record audio footage. They should also tell those who come into the range of such equipment what is being processed and why.
Guidance from the ICO on the installation of domestic CCTV can be found here: https://ico.org.uk/your-data-matters/domestic-cctv-systems-guidance-for-people-using-cctv/.
Written by David Healey at BLM (firstname.lastname@example.org)
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