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Can operators of home CCTV be classified as data controllers?
In the era of drones, selfies and YouTube, it is perhaps unsurprising that sales of home CCTV kits, and in particular, IP video surveillance systems (which allow digital video footage to be recorded, stored and viewed on internet connected devices), have experienced explosive sales growth. However, a recent Czech case[i] has resulted in a potentially ground breaking decision by the European Court of Justice (ECJ), which could have significant implications for domestic video recording.
Throughout 2007, Mr Ryneš and his family had been the victims of vandalism, and on various occasions the windows to their house had been smashed. They did not know the identities of the vandals. In response to these episodes, Mr Ryneš installed a CCTV camera system on his property. The camera recorded visual images, but no sound. It was installed on the eaves of the property, in a fixed position, and recorded the entrance to his house, a public footpath and the house opposite. All recording data was transmitted to a hard drive, to which only Mr Ryneš had access.
Unfortunately, the vandals soon returned for another bout of window smashing, this time using a catapult. However, Mr Ryneš’ CCTV system proved effective. The resulting video footage captured both the attack, and the faces of the vandals. Mr Ryneš handed the recording to the police, who were able to use the footage to identify the culprits. The video recording was used as evidence in the resulting criminal proceedings.
Interestingly, one of the suspects submitted an argument to the Czech Office for the Protection of Personal Data, that Mr Ryneš’ CCTV footage should not be admissible in court. He argued that it was recorded without his consent, while he was standing on a public footpath in front of the Ryneš’ family home. In a dramatic twist to the tale, the Office agreed, taking the view that Mr Ryneš (the victim in this saga) should in fact be fined, for being in breach of Czech personal data protection rules[ii]. They said that:
- as a data controller, Mr Ryneš had used the home CCTV system to collect personal data from people in a public place, without their consent; (remember- the camera was also facing a public footpath, plus the entrance to the house opposite);
- Mr Ryneš had not provided a privacy notice to inform people passing by that they would be captured on CCTV; the extent and purpose of the processing; who was carrying out the processing; and who would have access to the data; and
- Mr Ryneš had failed to notify the Czech Office for the Protection of Personal Data that he was processing personal data in the first place.
Mr Ryneš was, quite understandably, surprised by this decision and appealed, arguing that his use of CCTV equipment was permitted on the basis of an exemption under Article 3(2) of the EU Data Protection Directive[iii], which states that “the Data Protection Directive shall not apply to the processing of personal data by a natural person in the course of a purely personal or household activity.” However, Mr Ryneš’ appeal was dismissed.
He appealed again, this time to the Czech Republic’s Supreme Administrative Court, who in turn, referred the following specific question to the European Court of Justice (ECJ):
Can the operation of a camera system installed on a family home for the purposes of the protection of the property, health and life of the owner of the home, be classified as the recording of personal data “by a natural person in the course of a purely personal or household activity” for the purposes of Article 3(2) of the Data Protection Directive, even though such a system also monitors a public space?
The ECJ's preliminary decision
Firstly, the ECJ ruled that the interpretation of the Article 3(2) Data Protection Directive exemption for a “purely or personal household activity”, should be narrowly construed. Where a camera’s positioning results in video footage of both the individual’s private home, but also partially captures a public space, the definition of “purely or personal household activity” is not fully satisfied, and thus the Directive will apply.
Secondly, as personal data is defined under Article 2(a) as “any information relating to an identified or identifiable natural person”, the ECJ clarified that video footage from a CCTV camera will constitute personal data, as it is possible to identify the person from the footage. The ECJ also confirmed that if the CCTV is recording on a continuous basis, it will satisfy the definition of “automatic processing of data”, under Article 3(1)[iv]
However, in applying the Directive, the courts of EU Member States must also take into consideration the following:
- Article 7(f)[v]: The legitimate interest of the person who has engaged in the processing of personal data (the “data controller” – Mr Ryneš in this case) in protecting the property, health and life of his family and himself;
- Article 11(2)[vi]: The data subject will not need to be informed that data processing is being carried out, where the provision of such information proves impossible or would require a disproportionate amount of effort; and
- Member States may, under Article 13(1)[vii] adopt legislative measures to restrict the scope of the obligations and rights provided for in Article 11(1), if such a restriction constitutes a necessary measure to safeguard the prevention, investigation, detection and prosecution of criminal offences, or breaches of ethics for regulated professions or the protection of the rights and freedoms of others”.
This case is likely to have interesting repercussions on the use of home CCTV equipment which overlooks neighbours’ properties or touches the public realm. The case also highlights the challenges which may be encountered by individuals attempting rely in court on evidence obtained through such recordings. In the UK, the Information Commissioner’s Office has updated its Code of Practice for CCTV and Surveillance and highlight that cameras monitoring areas beyond the interior or exterior limits of a person’s home may be subject to the Data Protection Act. They have also offered some guidance to individuals in this regard[viii].
Looking more widely, by taking a restrictive view of the domestic use exemption, the ECJ has potentially caused alarm for bloggers, volunteers, and other ‘amateur’ users of personal information.
[i] František Ryneš v Úřad pro ochranu osobních údajů
[ii] Mr Rynes had infringed Czech Law No. 101/2000
[iii] Indent Two , Article 3(2) Data Protection Directive (95/46/EC)
[iv] Article 3(1) Data Protection Directive (95/46/EC)
[v] Article 7(f) Data Protection Directive (95/46/EC)
[vi] Article 11(2) Data Protection Directive (95/46/EC)
[vii] Article 13(1)(d) & (g) Data Protection Directive (95/46/EC)