Many people now want to install smart doorbells and other forms of domestic CCTV and will ask their housing provider for permission. Landlords are also increasingly installing more sophisticated video systems themselves to deter and detect fly-tipping, anti-social behaviour (ASB), as part of estate and employee management (including dash cams) and using footage captured on their own and customers’ systems as evidence in enforcement.

As with many new technologies, legal cases are not far behind. Recent cases show the courts grappling with the lawfulness of the installation and use of footage. Read on for an overview of recent decisions and our advice on how you can minimise the risk of legal challenges.

Recent judgments on the lawfulness of CCTV systems around the home and elsewhere

In Molloy v BPHA, Mr Molloy was a tenant of BPHA, a housing association. Mr Molloy engaged in racist abuse towards his neighbours from his garden. BPHA advised the neighbours to install CCTV, which was then used as evidence in an ASB injunction and for committal proceedings for breach of the injunction. Mr Molloy appealed against the committal proceedings, including on the basis that the use of the CCTV footage by the landlord was a breach of his privacy and family rights. The Court held that the neighbours’ own privacy and family life rights overwhelmingly outweighed any considerations of privacy which Mr Molloy and his family would normally be entitled to expect. The court commented that whilst it is not normal to be recorded by a neighbour whenever one leaves or returns home, Mr Molloy’s behaviour undoubtedly justified a departure from the norm.

In Fairhurst v Woodward, Mr Woodward installed various ‘Ring’ cameras around his property, which was adjacent to Dr Fairhurst’s home. Dr Fairhurst sued Mr Woodward for breach of data protection law and harassment. The judge concluded (among other things) that one camera captured footage and audio of Dr Fairhurst’s garden, and as she drove in and out of a communal car park. The Court found Mr Woodward had actively misled Dr Fairhurst about how and whether the cameras operated and what they captured, and therefore Mr Woodward’s behaviour was unlawful harassment and in breach of data protection law.

In Bridges v South Wales Police, a trial usage of automated facial recognition cameras in public spaces was found to be unlawful because of insufficient controls around the seniority of officer who could authorise the deployment of the cameras and the circumstances in which the cameras could be deployed, and deficient paperwork.

These cases reach different conclusions as to the lawfulness of CCTV monitoring outside and around the home. The motive and behaviour of both the person operating the camera, and the person caught on it, as well as the location, nature and degree of the intrusion caused by the CCTV were big factors in the Court’s judgments.

How landlords can protect themselves against legal challenges

What are the considerations for a landlord installing its own CCTV?

Landlords installing their own CCTV or receiving footage from others (including tenants) will be subject to data protection law. You will need to:

• justify the use of CCTV and its location, particularly if audio or other more intrusive kinds of footage is captured
• potentially consult with affected residents
• undertake an ‘impact assessment’ (particularly for large-scale or contentious set-ups)
• arrange signage
• respond appropriately to requests for footage, and
• consider the security and storage arrangements for the cameras.

If cameras are monitored by an external contractor, they will need to be SIA registered and an appropriate contract needs to be put in place.

Whilst not binding on private registered providers, there is comprehensive guidance on installing CCTV issued by the Surveillance Camera Commissioner  and the Information Commissioner’s Office (ICO) has further resources on its website.

What if my tenants ask for permission to install CCTV?

Landlords will also be faced with increasing numbers of requests from tenants to install cameras. There are choices for landlords as to how actively they want to oversee installations, but we recommend that organisations factor this into policies and procedures. Factors to consider include:

• Agreeing locations for cameras – for instance, whilst tenants may want to install cameras looking into communal areas, this can be an area of dispute, particularly if neighbours’ homes and movements are captured
• Alterations, particularly if the camera is fixed to a wall outside the tenant’s demise
• Encouraging tenants to talk to each other and follow ICO and government guidance
• How to deal with neighbour disputes or complaints about cameras, including a right to remove them or to require them to be removed

How Capsticks can help

Our team at Capsticks are experts in all areas of information law and CCTV-related issues. We give practical advice on the full range of advisory, transactional, regulatory and litigated issues including effective information sharing between organisations, complex subject access requests, and responding to information security incidents and cyber-attacks.

For an initial discussion about any issues affecting your organisation, please contact Andrew Latham, Serena Patel or Lauren Danks.