D-Day for the Domestic Purpose exemption and the use of CCTV installed at home

I was just explaining to my psychiatrist that December 11th this week will be a very exciting day for data protection aficionados. The European Court of Justice (ECJ) is about to make a second landmark judgement on the Domestic Purpose exemption (Section 36 of the Data Protection Act) and whether or not the Act should apply to domestic CCTV installed to protect the home.

Currently the ICO believes that the domestic purpose exemption does apply, but if the ECJ follows the Advocate General, then it won’t if the home CCTV covers public spaces (e.g. the street) outside the home.

I think the use of domestic CCTV is an emerging problem (especially if drones are used to spy on neighbours). We have had a number of course delegates that have mentioned that they have become aware of being under CCTV surveillance by neighbours when sunbathing in their garden.

Indeed, many households are installing security CCTV systems for security purposes which expressly monitor the public space outside their home. The Evening Standard (last Friday) reported someone collecting CCTV images on their personal phones of those entering an abortion clinic; images that subsequently appeared on YouTube in order to shame those seeking an abortion. So should the Section 36 exemption apply here?

Anyway to the story that has caused the problem. František Ryneš is a Czech journalist who published a number of articles about the controversial sale of plots of land. Following publication his wife’s house was attacked by vandals a number of times. Mr  Ryneš  therefore installed a security camera in front of the door. The camera recorded the space immediately in front of the house, including the pavement, the road and the house opposite.

Less than a week after the camera was installed the house was once again attacked. Mr Ryneš provided the police with the images from the camera and the vandals were identified. One of the vandals then complained to the Czech data protection authorities that Mr Ryneš had recorded him on public property without his permission. Mr Ryneš was then fined for infringing data protection rules.

Hence the question arose as to whether a data protection regime should apply to these “domestic” CCTV installations. If it doesn’t,  would the domestic exemption continue to apply to those who take camcorders to record their young child’s performance in a school play or orchestra? As you know, the ICO regularly says that this processing falls within Section 36.

The domestic purpose exemption relies on the text of Article 3 of the Data Protection Directive (95/46/EC). This states that processing of personal data “by a natural person in the course of a purely personal or household activity” is not subject the Directive. So, in the Ryneš case, can capturing images of those in a public place be classified as “a purely personal or household activity”?

The Advocate General is of the view that the "personal activities" within the meaning of Article 3, are activities which are connected with the private life of a person which does not appreciably touch the privacy of others. This means that recording a family gathering at a hotel, or family events in public places, or in connection with events shared by family members can be activities associated with “personal or family activities” (as required by A.3).

However video surveillance, which extends to the public space, because it includes people who have no connection to the family concerned, even within a home, cannot be regarded as strictly personal. This could mean that those who leave a covert CCTV system in a care home to assess the quality of care delivered to their elderly Grandmother cannot claim the domestic purpose exemption.

In short, according to the Advocate General, the systematic video surveillance of public space by natural persons is therefore not exempt from data protection requirements whether the surveillance is undertaken by private bodies, state authorities or the domestic CCTV.

Therefore processing of personal data by Mr Ryneš does not fall within the definition of "purely personal or household activity" as he systematically undertook video surveillance outside the home.  It follows that the processing of personal data falls within the scope of Directive 95/46.

So get ready for December 11th (and quite a lot of hostile anti-euro comment) if the ECJ follows the Advocate General. Remember, the ECJ usually follows the Advocate General (but didn’t in Google Spain!).

References associated with Domestic Purposes

Thursday 11th December 2014: Judgment in Case C-212/13 Ryneš. This case asks the question whether a camera fixed to private property can also capture images of people on the public rights of way in front of the property. Mr Ryneš has appealed against that decision and the Czech court which asked the ECJ whether such use of a camera breaches the Data Protection Directive.

In the “Solicitors from Hell” case (where a blogger invited anybody to enter all sorts of inaccurate scuttlebutt about lawyers to be published) the ICO refused to enforce the Act because the processing fell within the “domestic purpose exemption”. This view that was panned by the court. See the Solicitors from Hell ([2011] EWHC 3185 (QB)) and  http://amberhawk.typepad.com/amberhawk/2012/01/judgement-reinforces-the-link-between-lawful-processing-the-first-data-protection-principle-and-human-rightsother-law.html

In the Lindqvist case the ECJ ruled that posting personal details on the Internet was not subject to the Article 3 exemption, because the personal data were no longer private. This in turn means that many Facebook postings loose the domestic purpose protection (although in the UK, the ICO has turned a blind eye to the ruling). Lindqvist (ECJ, Case C-101/01, 6 November 2003). See “Baby battle woman can’t claim data protection exemption for YouTube video, warns expert” http://www.out-law.com/page-8401

Also, with respect to possible infraction proceedings, the Commission has published the fact that the UK’s inclusion of “recreational purposes” in the domestic purpose exemption is too broad. See http://amberhawk.typepad.com/amberhawk/2011/02/european-commission-explains-why-uks-data-protection-act-is-deficient.html

Comments

[Brian]

What about cyclists and motorists with video cameras to record incidents for evidential purposes - where do they lie within the law? That is recordings made in public places? Would a CCTV on a house not fall under the same if it recorded a public place?