CCTV Legalities

axer

Hi,

I want to put CCTV in the front of my house to cover my driveway. I close my gate so that I can point a camera in such a way as to catch someone opening my gate i.e. if someone drove right into the driveway in a car/van then I would not catch them on cctv. Because of this I inadvertently capture footage of the footpath outside my house.

What are the legalities with regards this?

Some say that I must display a sign indicating the presence of CCTV because it captures some of the footpath and some say I could not use to footage against someone because it would not be legal as it would be capturing some of the footpath.

Thanks for any help/advice.

maidhc

Hypothetically speaking...

There is what some might consider a loophole in the Data protection legislation it that it will not apply to your situation. As such there is no need for a sign. You may still be sued in nuisance and possibly breach of confidence, but it would be a difficult case.

johnnyskeleton

In response to Maidhc's hypothesis...

I don't really think the data protection legislation applies to private citizens. If so, anyone could be required to divulge the gossip that they have about someone else. Section 1(4) of the 1988 act: "This act does not apply to...(c)personal data kept by an individual and concerned only with the management of his personal, family or household affairs or kept by an individual only for recreational purposes."

Also, if you use the camera to prevent, detect or investigate offences, or to apprehend or prosecute offenders it is fine, provided that you collect the information fairly and you don't keep the information unless it is relevant to prosecuting an offender it should be fine.

Businesses use cameras all the time, and they often cover part of a public place, so I don't think there would be much of an action in nuisance or breach of confidence.

For a public nuisance you have to show an interference with the enjoyment or the use of public land. I don't think being filmed would substantially interfere with people's enjoyment or use of the footpath - and if it did, they would have to show specific damage or economic loss. As for breach of confidence, I don't think every random person walking past your door divulges confidential information to you, so I don't think this really applies.

In regards to the Original Poster, in short I don't know. There are several issues in your question, and even if I were inclined to give specific legal advice (which I am not), your question is not really specific enough to give it. If this is a major concern of yours you might want to contact a solicitor. That way, if things go pear shaped based on the solicitor's advice, you might be able to sue them.

Some general observations though:

(a) CCTV footage is often used in criminal investigations to prove/disprove that an accused was at the scene of the crime at the time.
(b) even if it is inadmissable in court, it might be useful to identify a person who enters on your land and then compile more concrete evidence against them
(c) putting up a sign might be a good idea anyway - irrespective of the actual CCTV. It might make people think twice about unlawfully entering your property, even when there is no CCTV, and prevention is often better than cure (this is a suggestion, not advice)
(d) for civil matters, the question is not whether the evidence was obtained legally or not, the question is usually along the lines of whether the benefit of putting it in evidence outweighs the invasion of privacy concerned.

But I should indicate that at law, I think there is implied consent for anybody to enter on the curtilage of your property. So anyone entering your driveway would not be committing a crime or a tort unless they, for example, damaged property or entered your house without permission.

maidhc

johnnyskeleton wrote:

I don't really think the data protection legislation applies to private citizens. If so, anyone could be required to divulge the gossip that they have about someone else. Section 1(4) of the 1988 act: "This act does not apply to...(c)personal data kept by an individual and concerned only with the management of his personal, family or household affairs or kept by an individual only for recreational purposes."

My point exactly. I just couldn't be bothered looking for section in the legislation.

My breach of confidence theory works on the basis of the Von Hannover decsion in the ECHR, and possible paralellels with how the UK courts have interpreted it, and the ECHR Act here. As I said though, it would be a tough one to prove.

The notion of a sign being required stems from this line of thinking:
http://www.dataprotection.ie/viewdoc.asp?m=m&fn=/documents/guidance/cctv.htm

johnnyskeleton

maidhc wrote:

My point exactly. I just couldn't be bothered looking for section in the legislation.

It's not a loophole in the data protection act, the act doesn't apply to private citizens in the normal course of their daily lives.

maidhc wrote:

My breach of confidence theory works on the basis of the Von Hannover decsion in the ECHR, and possible paralellels with how the UK courts have interpreted it, and the ECHR Act here. As I said though, it would be a tough one to prove.

For a breach of confidence case, there must be either a confidentiality agreement between the parties or else a duty of confidentiality imposed on one of the parties. Neither of these would exist as between absolute strangers. I don't know how the UK courts have interpreted it, but I would imagine it would come under the head of interference with the right to privacy rather than breach of confidence.

Von Hannover v. Germany concerns the publication of photographs which infringe a person's private life. A quare (a tangental question that is raised but not decided upon) of the case suggests that the harrasment and lack of consent of the photographed person to being photographed, if it causes a strong intrusion into a person's priavte life, could violate article 8 of the ECHR (right to private and family life). In my opinion, this would not apply where the person is not aware of the interference, and my understanding is that any objection on this ground must be felt at the time of intrusion, and not raised later (i.e. the person must apprehend the intrusion as they pass by the CCTV, not if they find out later that they were filmed).

timmywex

http://www.dataprotection.ie/viewdoc.asp?DocID=4

maidhc

johnnyskeleton wrote:

It's not a loophole in the data protection act, the act doesn't apply to private citizens in the normal course of their daily lives.

Is there a difference between a "loophole" and the law "not applying"? I'd agree for the most part the DPA should not apply to private citizens. For things like CCTV monitoring though I don't know if it is an ideal situation. I would argue not. E.g. is there a tangible difference between a private citizen having a CCTV camera and a company, if both are for security purposes?

johnnyskeleton wrote:

In my opinion, this would not apply where the person is not aware of the interference, and my understanding is that any objection on this ground must be felt at the time of intrusion, and not raised later (i.e. the person must apprehend the intrusion as they pass by the CCTV, not if they find out later that they were filmed).

That is not the slant that the UK courts took in the Naomi Campbell and Michael Douglas cases. Both of these concerned the later publication of photographs. The Naomi Cambell case is particularly interesting due to the House of Lords (ab)use of breach of confidence to create a defacto right to privacy.

johnnyskeleton

maidhc wrote:

Is there a difference between a "loophole" and the law "not applying"? I'd agree for the most part the DPA should not apply to private citizens. For things like CCTV monitoring though I don't know if it is an ideal situation. I would argue not. E.g. is there a tangible difference between a private citizen having a CCTV camera and a company, if both are for security purposes?

Well I guess its to a certain extent academic, but a loophole suggests to me that there is a sneaky way around a statutory obligation e.g. Quinn group exploiting the health insurance legislation in a way that was not intended by the legislature. It doesn't apply to private citizens and that makes it different because it was not intended to apply to them and they never had any obligation under it in the first place.

I do think there are several differences between a company and a private citizen having CCTV - 1) citizens generally have more freedom 2) it is a more onerous burden to ask private citizens to comply with data protection law 3) protecting the domicile is a fundamental constitutional right over and above the right to protect property 4) most people would accept that a dwelling is of a more private nature than a business premises (especially where that business premises is open to the public) 5) businesses will often keep videos for a number of months/years, while a private citizen will more likely dispose of them unless they are needed for evidence, etc

maidhc wrote:

That is not the slant that the UK courts took in the Naomi Campbell and Michael Douglas cases. Both of these concerned the later publication of photographs. The Naomi Cambell case is particularly interesting due to the House of Lords (ab)use of breach of confidence to create a defacto right to privacy.

I have never read those cases, so thanks for bringing this aspect of them to my attention. However, I would respectfully disagree with your comment and also with the line of reasoning in the House of Lords.

Firstly, the breach of confidence in Campbell concerned the communication and publication, not the taking, of the photographs. The trial judge found that the communication of the pictures to the mirror was in breach of confidence, and that the mirror must have known this. Lord Hoffman stated (at paras 73-74):

"In the present case, the pictures were taken without Ms Campbell's consent. That in my opinion is not enough to amount to a wrongful invasion of privacy. The famous and even the not so famous who go out in public must accept that they may be photographed without their consent, just as they may be observed by others without their consent. As Gleeson CJ said in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13, para 41:


"Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people."

74. But the fact that we cannot avoid being photographed does not mean that anyone who takes or obtains such photographs can publish them to the world at large"

So I think it is fair to say that the question doesn't arise unless there is a publication (in the legal sense) of the material.

I also would have to disagree, not just with the extension of breach of confidence in England, but also with the consequent balancing of rights. I don't want to hijack this thread, so if you're interested in discussing these issues further perhaps we can open a new thread.

Suffice it to say that I don't think the tort of breach of confidence should be extended as it is in England, the rememdy of breach of constitutional right to privacy may suffice in Ireland, in England there is now a situation where if you publish a response to a lie and you tell the truth you could be liable for breach of confidence, but if you tell a falsehood which is not motivated by malice you are not liable (i.e. defamation, qualified privilege), and I also would disagree with the balance made by the majority between the rights of freedom of speech and protection of private life.

So I must apologise to the original poster in that I have taken this somewhat off thread, but I think that provided you use a CCTV for protecting your property and not for publication, and you act in a cautious and responsible manner, you should be alright. I don't think anyone can predict whether a judge will or will not admit the evidence for certain but I would be inclined to think that provided it is relevant, it should be admissable in a civil trial, and probably in a criminal trial too.

axer

Thanks for the great replies guys.