Last week the County Court, at Oxford in the United Kingdom, found for the claimant in a claim for harassment, nuisance and breach of the UK Data Protection Act 2018 in Fairhurst v Woodard.

FACTS

The Claimant (“Fairhurst”) and the Defendant (“Woodard”) are neighbours in Cromwell Avenue, Thame, Oxfordshire [2].  They each occupied terrace houses [3].

The cause of the complaint was the deployment of:

• a floodlight and sensor (“the Floodlight”) and   a video and audio surveillance camera with an integrated motion sensitive spotlight known as a ‘Ring’ Spotlight Camera (Battery) (the “Shed Camera”) pointing in the direction of a car park [5]
  
• a combined doorbell and video and audio surveillance system known as a ‘Ring’ Video Doorbell 2 (the “Ring Doorbell”) at his front door pointing in the direction of Cromwell Avenue [6];
• a second ‘Ring’ Spotlight Camera (Battery) (the “Driveway Camera”) on the gable end wall of another property pointing down a driveway towards a car park [7]
  
• a ‘Nest’ camera inside the front windowsill of No 87 (“Windowsill Camera”), pointing out of the window towards Cromwell Avenue [8]
  

The Driveway Camera and the Windowsill Camera were removed before proceedings were commenced.

There were issues between the parties about, [11]:

i) its field and depth of view, i.e. the extent it can ‘see’ beyond the boundaries of the Defendant’s property, in particular whether it can ‘see’ the Claimant or her visitors entering and leaving her property, her car, or the car park;
ii) the sensitivity of its microphone;

iii) the extent to which it activates itself automatically, or is triggered, to capture, transmit or record video images and/or associated audio from the field of view (it being accepted that once the camera is set up, the user can do so at any time);
iv) whether the Defendant undertook adequate consultation of neighbours before installation or provided adequate notices or warnings after installation;
v) how and for what purpose the Defendant stores and processes the video or audio files produced by it.

Fairhurst alleged that the placement of the Cameras unnecessarily and unjustifiably invaded her privacy and this amounted to

• nuisance
• breach of the Data Protection Act 2018; and
• harassment under the Protection from Harassment Act 1997.

Woodward claimed the cameras, lights and audio devices were installed for crime prevention purposes.

Judge Clarke undertook a lengthy and extensive analysis of the evidence, which Woodward came away very much second best.  Her Honour was not impressed by his evidence personally and the evidence he relied upon.

DECISION

The Court found harassment under the Protection from Harassment Act in relation to his dealings with Fairhurst.

The Court did not find the claim of nuisance caused by the loss of privacy was made out because of the UK Court of Appeal Decision of Fearn and Ors v Board  of Trustees of the Tate Gallery [2020] EWCA Civ 104 which held that merely overlooking from own property to another does not give rise to a claim of private nuisance. Her Honour also found that the switching on and off of motion detecting lights does not give rise to a claim in nuisance. 

The Court found that images and audio files were personal data under the General Data Protection Regulation. and that the Woodward was the data controller under those regulations.  He must comply with the principles under Article 5. Her Honour found that the use of the cameras and audio recording went beyond what was limited to what is necessary for the purpose for which the camera and audio was set up, namely crime prevention .  The court found that some of the cameras collected data from outside Woodward’s property and less intrusive means could have been undertaken for the same ostensible purpose.

ISSUE

The case law and the statutes in Australia are different to those in the United Kingdom.  In Australia is unlikely a neighbour would be covered by the Privacy Act 1988 as Woodward was found to be a data controller under the UK Data Protection Act.   That is a weakness in the Australian regulations.  The case does highlight the practical difficulties in bringing a claim in nuisance for privacy intrusive conduct.  In Australia similar issues may arise though the facts and context are critical.  In Australia there is no common law tort of harassment or a statutory tort of harassment.

What is clear however is that the use of ever more sophisticated and cheaper camera systems and audio recording devices for home use means that privacy issues will arise and sometimes that means pleading causes of action.  Without a statutory tort of privacy/interference with privacy and a statutory tort of harassment there are challenges.  That doesn’t change the fact that individuals don’t like being spied upon by devices deployed by neighbours and the lack of insight and prudence is a common enough vice which manifests itself in neighbourhood disputes.

There is currently a lethargic review of the Privacy Act 1988 where consideration of a statutory tor of interference with privacy is being considered, yet again and despite recommendations by the Australian Law Reform Commission (twice in the last 20 years), the Victorian and New South Wales Law Reform Commissions and the Australian Competition and Consumer Commission.  Perhaps the Government will finally acknowledge the lacuna in the law and legislate reforms.  Until then fashioning and claim in equity and common law is challenge for practitioners.

It is interesting to note that as a result of this decision Amazon issued a statement asking owners of the Ring device Woodward used to respect privacy.  That is reported in the Guardian article Amazon asks Ring owners to respect privacy after court rules usage broke law.  The judgment received considerable coverage in the UK media with the Oxford Mails Readers have their say after Amazon Ring privacy dispute, Channel News’ Ring Smart Security System “Unjustifiably Invaded” Privacy, Court Rules and even Forbes’ reporting British Judge Rules That Amazon Ring Cameras And Other CCTV Could Be An Invasion Of Privacy and other articles besides.

Thanks to Informm blog for highlighting this case.