united-kingdom
Imagine a range of possible actions, from
- (A) you doing nothing else with regard to your neighbour but on one occasion taking one photograph of him staring over your fence, to
- (Z) you setting up multi-device round-the-clock audiovisual surveillance of the neighbour's property.
In the range between A and Z there is a variety of actions. At A you're doing nothing unlawful; a little further along, even if your behaviour might be unlawful on paper, it's unlikely the police will be interested, it's unlikely to be practical to pursue in civil proceedings. As you proceed towards the extreme end your legal risks increase. At Z, on the face of it you are committing torts (civil wrongs) and criminal offences.
If on the face it you are committing torts or criminal offences, the purpose of your actions may provide you a defence or exemption. E.g. perhaps you are gathering evidence for your civil or criminal complaint about the neighbour's behaviour - this is a statutory defence against a harassment claim (civil or criminal - see below).
Here are three things you are not wholly legally free to do on or from your own property:
- to pursue a 'course of conduct' that amounts to the 'harassment' or 'stalking' of your neighbour (the Protection from Harassment Act 1977, which can be a tort or criminal offence)
- to cause a substantial and unreasonable interference with your neighbour's right to enjoyment of his property (the tort of 'private nuisance' at common law)
- to record images, video or (in particular) audio of people beyond the boundaries of your own property, even incidentally (in this context you can't rely on the domestic or household activity exemption under data protection law - people have argued that you should be able to, to some extent, but right or wrong the fact is that some courts have ruled otherwise - an example below - and that is why I say you can't rely on the exemption)
Harassment or stalking
As well as the definition of harassment at section 1 Protection from Harassment Act 1977 we have guidance from Mr Justice Simon in Dowson & Ors v Chief Constable of Northumbria Police (Rev 1) [2010] EWHC 2612 (QB):
- I turn then to a summary of what must be proved as a matter of law in order for the claim in harassment to succeed.
(1) There must be conduct which occurs on at least two occasions, [section 7(3) PHA 1997]
Doing nothing other than taking one photograph cannot amount to 'a course of conduct', therefore it can't be harassment. Doing more than taking one photograph could amount to a course of conduct - it depends.
(2) which is targeted at the claimant,
(3) which is calculated in an objective sense to cause alarm or distress [section 7(2) PHA 1997], and
(4) which is objectively judged to be oppressive and unacceptable.
As usual, "objective" and "objectively" here mean the claimant (the accuser) must persuade the court the average or ordinary person would believe this.
(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.
(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: 'torment' of the victim, 'of an order which would sustain criminal liability'.
Section 2A(3) PHA provides "examples of acts or omissions which, in particular circumstances, are ones associated with stalking", including:
(g) watching or spying on a person.
Section 1(3) PHA specifies three defences:
(3) Subsection (1) or (1A) does not apply to a course of conduct if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting
crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.
You'll notice the neighbour's behaviour might be harassment.
Nuisance
The law of private nuisance is intended to maintain a balance "between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with" (Sedleigh-Denfield v O'Callaghan [1940] AC 880, 903 (Lord Wright)).
Looking into someone's land could give rise to a tort of nuisance (again you'll notice this could apply to the neighbour). Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4), paragraph 16:
- In this case we are concerned, not with a sight to which an occupier of land is subjected when looking out, but with the interference caused by people constantly looking in. Leaving the actual facts of this case aside for the moment, it is not difficult to imagine circumstances in which an ordinary person would find such visual intrusion an intolerable interference with their freedom to use and enjoy their property. A colourful illustration is provided by a mediaeval case heard at the London Assize of Nuisance in 1341: see Misc Roll DD: 5 Nov 1339 - 15 Dec 1346, number 365. According to the case record:
“The [plaintiff] complains that John le Leche, fishmonger, has a leaden watch-tower (garritam) upon the wall of his tenement adjoining hers in the same par[ish] upon which he and his household (familiares) stand daily, watching the private affairs of the pl[aintiff] and her servants. The def[endant], present upon the land before the mayor and aldermen, admits the nuisance, and freely undertakes to remove it within 40 days subject to the customary penalty.”
It is not a good defence for the defendant to say the claimant could do something (e.g. pull the curtains, close the blinds, stay out of the garden) to avoid the consequences of the defendant's nuisance, because it places the burden of mitigating or stopping the nuisance on the victim of the nuisance instead of the person causing the nuisance (paragraph 83).
Data protection law
Images, video and audio recordings of people are 'personal data' of those 'data subjects'. If you the householder capture this personal data originating outside the boundary of your private property, e.g. people in the street or someone else's property, then the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 may apply as you can't reliably claim the domestic or household activty exemption in Article 2(c) GDPR:
- This Regulation does not apply to the processing of personal data: ...
(c) by a natural person in the course of a purely personal or household activity;
See Guidance on the use of domestic CCTV on gov.uk. Whether the regulator will enforce the law is another matter, the ICO has stated that it's unlikely to take enforcement action against householders, but the courts have ruled in favour of some private complainants.
This doesn't necessarily make your behaviour unlawful. In such circumstances you become a 'data controller' and you're obliged to:
- make an effort to minimise the intrusion on the privacy of others
- be open and transparent about your behaviour, e.g. inform your neighbours about it, put up signs that recording is taking place
- have a 'lawful basis' for it (there are six)
- store the data for no longer than is necessary
- be aware of data protection rights and facilitate the exercise of those rights
and so on. If you don't do those things you increase your risk.
Again, taking one photograph is likely nothing but it is risky to mount several cameras that cover the neighbour's property - it's worse if the cameras are deliberately aimed at the neighbour's property. Audio recordings are considered particularly intrusive.
An example case
An illustrative case is Fairhurst vs Woodard - not precedent-setting because it was heard by County Court, however it is relevant to the three items above. Claimant Fairhurst brought a claim for harassment, nuisance and breach of the GDPR and DPA against her neighbour, defendant Woodard.
Woodard had set up a floodlight and sensor, two Ring spotlight cameras, a Ring doorbell and a Nest camera pointing towards a car park or street respectively. The Ring devices could record audio as well as video.
- The Claimant’s case in broad summary is that the Defendant has consistently failed to be open and honest with the Claimant about the Cameras, has unnecessarily and unjustifiably invaded her privacy by his use of the Cameras and has intimidated her when challenged about that use, and that this amounts to:
i) a nuisance; and
ii) breach of the Data Protection Act 2018 and Regulations thereto (“DPA 2018”); and
iii) a course of conduct designed to harass the Claimant contrary to the Protection from Harassment Act 1997 (“PHA 1997”)
Ultimately:
The Claimant’s claims in harassment and breach of the DPA 2018 succeed.
The Claimant’s claims in nuisance are dismissed
The nuisance claim failed partly because the court was aware of Fearn & Ors v Board of Trustees of the Tate Gallery at the Court of Appeal stage, when it held that "mere overlooking from one property to another is not capable of giving rise to a cause of action in private nuisance". But, as mentioned above, on appeal the Supreme Court found that overlooking from one property to another is capable of giving rise to a cause of action in private nuisance. Poor timing.
(The other part of the nuisance claim was that a light could cause a nuisance and this was agreed to be a valid cause of action. However, in these particular circumstances the court found the light was not an undue interference with the claimant's use or enjoyment of her property.)
