united-kingdom privacy recording surveillance
Can a breach of privacy occur when surveilling a public space through which 3rd parties have no choice but to pass?
<p>In <a href="https://www.cctv.co.uk/are-doorbell-cameras-legal-legal-issues-uk/" rel="nofollow noreferrer">an article on doorbell cameras</a>, it is noted that a breach of privacy was deemed to have occurred through the use of a video doorbell that recorded a neighbour &quot;every time she entered or exited her property&quot;.</p>
<p>In the judgment (<a href="https://www.judiciary.uk/wp-content/uploads/2022/07/Fairhurst-v-Woodard-Judgment-1.pdf" rel="nofollow noreferrer">Fairhurst v Woodard</a>), point 135 mentions</p>
<blockquote>
<p>... the Claimant's right to privacy in her own home, to leave from and return to her house and entertain visitors without her video personal data being captured</p>
</blockquote>
<p>In this case, it seems that the camera in question was pointing at the neighbour's property. However, I'm curious about where this right &quot;to leave from and return to her house&quot; comes from, and how broadly it might be construed.</p>
<h2>The scenario</h2>
<p><em>N.B. This is <strong>not</strong> the scenario in the aforementioned case.</em></p>
<p>If a camera is pointed out into a public street on a <a href="https://en.wikipedia.org/wiki/Dead_end_(street)" rel="nofollow noreferrer">cul-de-sac</a>, and the field of view covers a line right across the road, so that anybody living <em>at the end of the cul-de-sac</em> has no option but to pass through it when leaving or returning, would that infringe on the same right? Is that right likely to outweigh the right of the camera owner to make recordings for the legitimate purpose of protecting their property?</p>
<h2>The scenario, illustrated</h2>
<p><a href="https://i.stack.imgur.com/wiMw3.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/wiMw3.png" alt="enter image description here" /></a></p>
<p>The owner of the yellow house has installed the camera. The blue waves show the camera's field of view, covering the whole street. The owner of the green house can only reach the main road by passing through the camera's field of view. The only reasonable way for them not to be recorded, is for them to stay confined to their home (or at least, to the end of the street). Are the rights of the owner of the green house being infringed?</p>

<p>Yes, that might be a violation of data protection law such as the DPA 2018 / UKGDPR, but not necessarily so. It depends on the details, for example on the purpose this camera serves.</p>
<h2>Background on Fairhurst v Woodard and on legitimate interests</h2>
<p><em>Fairhurst v Woodard</em> is a significant case discussing implications of use of video surveillance outside of a commercial context, but it is a complex case due to the multitude of cameras involved and due to the somewhat unrelated privacy and harassment issues.</p>
<p>Point 135 is about the Driveway Camera, which only surveilled public property and the claimant's property, but did not view any part of the defendants property. People are free to surveil their own property, and would then be covered by the UKGDPR household exception. But for surveillance outside of their own property, defendant would have to comply with the DPA 2018 and the UKGDPR, for which defendant would have needed a legal basis.</p>
<p>The defendant argued that they had a <em>legitimate interest</em> (Art 6(1)(f) UKGDPR):</p>
<blockquote>
<p>134. […] The Defendant submits that all his data collection and processing
was necessary for the purposes of crime prevention at his property and in
the car park</p>
</blockquote>
<p>However, a legitimate interest always require as <em>balancing test</em>. The legitimate interest can be “overridden by the interests or fundamental rights and freedoms of the data subject” (Art 6(1)(f) UKGDPR). It is not necessary here that these interests, rights, and freedoms are explicitly enumerated in statutory law. Here, a right is claimed without supporting legal basis:</p>
<blockquote>
<p>134. […] Claimant submits that her right to privacy in and
around her home overrides that purpose.</p>
</blockquote>
<p>However, a possible basis for this claim would be Art 8(1) of the European Convention on Human Rights, which is part of UK constitutional law: “Everyone has the right to respect for his private and family life, his home and his correspondence.”</p>
<p>The court balances these rights and interests very differently for the different cameras. The Ring Doorbell is mainly focused on people who would ring the defendant's doorbell, and only incidentally captures passer-bys. Here, the legitimate interest was found to be valid. On the other hand, the Driveway Camera was mostly trained on claimant's property. Here, claimant's interests, rights, and freedoms override the claimed legitimate interests.</p>
<h2>Your scenario</h2>
<p>If the camera records the people living in the Green House when they go to or from their property, then yes, it seems like their rights would be affected.</p>
<p>But in your scenario, the context of the camera is not clear:</p>
<ul>
<li>Why was it installed? If the purpose is crime prevention, is there evidence of such crimes in the neighbourhood, or are the cameras intended to counter a speculative threat?</li>
<li>What is its field of view? Is it mainly trained on the Yellow House's doorstep and only captures the street as a background, or does it focus on the street?</li>
<li>Is the camera's field of view masked off as far as possible to exclude public spaces?</li>
<li>Does the camera record continuously, or is it only activated for certain events like when a doorbell is rung or when someone enters the Yellow House property?</li>
<li>Does the camera also record audio?</li>
</ul>
<p>All of this is important because it factors into a legitimate interest balancing test. Maybe the Yellow House camera is more like the Ring Doorbell in the above case where the incidental capture of passer-bys was found to be acceptable, maybe it is more like the Driveway Camera that served no legitimate interest.</p>
<p>There is no absolute right to be free of all surveillance. Instead, the interests and rights of the Green and Yellow house residents must be balanced appropriately. Where there is surveillance, it must be limited to what is necessary.</p>

<p>So having read the case, this is not what is happening here.  The claim of of nuisance which would have covered this, was dismissed as the judge found that the reasonable exception of privacy on a public street does not overcome the legitimate purpose of the cameras in the interest of the property owner of Yellow House in preventing crime at his own personal property.  The finding against the defendant was over his conduct of lying that he reported the claimant to the police after the claimant appeared on camera footage of his property.  They also found that the listening device on the camera picked up sound far beyond the visual range of the camera.  Additionally, the cameras were pointed at direct neighbors (the white houses on either side of the yellow house) and the defendant was threatening to place more.  The judge discusses this further in paragraphs 128-130 (inclusive).</p>
