I’m a retired gentleman who goes for a leisurely walk and takes the same route on most days. This may well be because the walk will more often culminate with a visit to my favourite hostelry – but that’s another matter. However, along the walk, which is on a public footpath, there is one property where, when passing, I can always hear a sensor bleeping.
I have become somewhat concerned about this as I believe that all persons should have the right to walk on a public thoroughfare without being monitored or sensed for any reason. The house in question has a coded gate entrance with a quite a large driveway, and the sensor is on the gate pillar.
I took a photograph of the property and went to my local Garda station to inquire about the matter. The Garda was more concerned that I should delete the photograph from my phone. I explained to her that I only took the photograph as grounds for my concerns, and deleted it afterwards. That was three weeks ago, and I have not received any feedback about it since. She may have thought I was some sort of crank or that I was making a vexatious complaint, but I don’t even know the occupants of the property.
I might understand if a sensor activated upon walking up to a person’s front door – but this one activates in respect of every passerby walking on the footpath. Are we being filmed and/or photographed?
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I respect the right of people to protect their property. But are people permitted to protect their property to the point of compromising the privacy of law-abiding persons just going about their daily lives?
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The scenario raised touches on the balance between a property owner’s legitimate personal security interests and an intrusion upon the privacy rights of individuals. From your description, your key concern is that the sensor is filming and recording you and others in a public space, without your consent.
The use of recording devices by private individuals to protect their homes and property (including CCTV, smart doorbells and other devices) is becoming increasingly prevalent. In certain circumstances, the use of certain devices by private individuals can impact on the privacy rights of others, and such use can fall within the scope of data protection law.
The General Data Protection Regulation (GDPR) applies across the EU and governs the collection and use of “personal data”. Under GDPR, any form of surveillance that involves the capture of “personal data” (a photograph or video where an individual is identifiable can be classified as personal data) must be:
- Proportionate: As per Article 6(1)(F) of the GDPR, surveillance should be necessary for the purpose of the legitimate interest pursued by the controller. For example, protecting a property is a legitimate purpose, but the extent of monitoring must not be excessive.
- Transparent: It should be clear to a “data subject” that their “personal data” is being collected. The subject also has a right to know to what extent the “personal data” will be processed. This is outlined in Articles 13 and 14 of the GDPR.
- In Ireland, the Data Protection Act, 2018 gives further effect to the GDPR. The Data Protection Act, 2018 also created the Data Protection Commission (DPC), which is an independent statutory authority with responsibility for upholding the EU fundamental right of individuals to data privacy through the enforcement and monitoring of compliance with data protection legislation in Ireland.
It would be helpful to establish in the first instance whether the sensor is simply detecting movement (like a motion sensor for lighting) or whether it is filming and recording personal data (such as audio or visual recordings of passersby). You could consider the following:
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- Observe the sensor’s functionality: Does the sensor emit a sound or light when triggered, or does it seem to activate for everyone who passes? If you suspect that it is recording, look for any signs of cameras or equipment that could be linked to the sensor.
- Contact the property owner: If you feel comfortable about it, you might have a direct conversation with the property owner. While you may not know them, a friendly inquiry about the purpose of the sensor could help clarify matters. If they are unaware of potential privacy concerns, they may be willing to adjust the system. Another possibility is to send the property owner a letter setting out your concerns and requesting a copy of any and all of your personal data.
- Contact the Data Protection Commission (DPC): If matters are not resolved to your satisfaction, you may wish to raise a concern or lodge a complaint with the DPC, both of which can be done via the DPC website, or by email to info@dataprotection.ie
Obviously, property owners do have the right to secure their property; however, this must be balanced with the privacy rights of individuals walking freely on public paths without being filmed or recorded without consent.
Dean Carney is a solicitor with P O’Connor & Son www.poconsol.ie
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