It is not uncommon for homeowners to install security cameras and other surveillance equipment as a crime deterrent. Yet, the first-instance decision of Judge Clarke in Fairhurst v Woodard (CC, 12 September 2021) should act as a warning to such homeowners that unrestricted surveillance may breach data protection legislation and amount to harassment if used in an oppressive manner.
The claimant and defendant were neighbours. Their properties were situated in Thame, Oxfordshire. A private car park lay behind their rear garden boundary fences. The access road to the car park ran along the claimant’s side boundary and was owned, in part, by the claimant.
At his property, the defendant installed a video and audio surveillance integrated motion-sensitive spotlight to his rear shed door. He also installed a combined doorbell and video and audio surveillance system to his front door. Following the attempted theft of his car from the car park in April 2019, the defendant further installed an audio surveillance camera with an integrated motion sensitive spotlight on the gable wall belonging to his other neighbour. Additionally, he affixed a surveillance camera on the front windowsill of his property.
The cameras were able to send motion-activated alerts to the defendant’s electronic devices and smartphone in the form of a 30-second video clip. In particular, the shed and doorbell cameras were able to provide video and audio feeds on demand through an app.
The claimant brought a claim for an injunction and damages against the defendant. In her nuisance claim she alleged that the defendant had breached her privacy and, therefore, quiet enjoyment of her property. She also claimed that the defendant had engaged in a course of conduct designed to harass her contrary to the Protection from Harassment Act 1997. Lastly, she alleged that the defendant had breached the Data Protection Act 2018 and associated General Data Protection Regulation (EU 2016/679), as modified.
Adverse findings of fact were made against the defendant, whom the judge described as a “poor witness”. In particular, she found that the doorbell and windowsill cameras were not “dummy cameras”. Images from those cameras had been shared by the defendant with other neighbours. Further, the shed camera was not trained solely on the defendant’s car parking spaces, as he had erroneously informed the claimant. All the cameras captured video images that went beyond the defendant’s own property and in certain circumstances encroached onto the claimant’s property. Additionally, both the shed and doorbell camera recorded audio emanating from the claimant’s property.
Judge Clarke found that when the claimant objected to the defendant’s use of the cameras he intimidated her by threatening to misuse the images that he had captured of her. On one occasion the court found that the defendant had sent an image of the claimant to neighbours saying, “This is the most recent suspicious activity,” even though he knew the image was of the claimant.
The claimant succeeded in her claim under the 1997 Act. The court was highly critical of “victim blaming” arguments advanced on behalf of the defendant that intimated that the claimant had failed to show “understanding or compassion” in relation to the effects the attempted theft had on him.
The defendant, as a data controller, was also found to have breached the first and second data protection principles under the Regulations. Judge Clarke recognised that the defendant had a legitimate interest in protecting his home from crime. Yet, the claimant, as a data subject, had the right to privacy. In balancing those competing interests, the court found that the defendant’s collection and processing of the claimant’s data from the access road and shed cameras went beyond what was necessary. The access road camera only captured images beyond the defendant’s property.
In respect of the audio recorded by the access road, shed and doorbell cameras, the court found that they breached the third data protection principle in respect of data minimisation. The recordings went beyond what was necessary in relation to the purposes for which they were processed.
The claimant’s claim in nuisance failed. The decision in Fearn and others v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104; [2020] EGLR 14, which the court was obliged to follow, determined that mere overlooking was not capable of giving rise to a cause of action in private nuisance.
Elizabeth Dwomoh is a barrister at Lamb Chambers
