An article in the Mail on the use of connected doorbells has led me again to one of the oddest pages on the ICO’s website, on the use of domestic CCTV. Odd, because (behoven to the outdated, and frankly somewhat silly, decision of the CJEU in the 2014 Ryneš case) it approaches the issue on the basis that if a camera captures footage outside the curtilage of one’s home, then the home owner cannot avail themselves of the carve-out from the UK GDPR (at Article 2(2)) for “processing of personal data by an individual in the course of a purely personal or household activity”. But the law says nothing at all about the location or visual range of cameras – it is all about the processing purposes.
Also odd is that the ICO goes on to say that people operating CCTV that captures footage beyond their home’s curtilage will be required to comply with data subject rights (such as providing a privacy notice, and responding to access/erasure/stop requests). But, says the ICO, “we probably won’t do anything if people ignore us”:
You can complain to us when a user of domestic CCTV doesn’t follow the rules. We can send a letter asking them to resolve things, eg put up the appropriate signage or respond to data protection requests.
There is a limited amount of action the ICO can take after this point to make the person comply. It is highly unlikely the ICO will consider it fair or balanced to take enforcement action against a domestic CCTV user.
But oddest of all, the ICO says:
“These rules only apply to fixed cameras. They do not cover roaming cameras, such as drones or dashboard cameras (dashcams) as long as the drone or dashcam is used only for your domestic or household purposes”
I simply don’t understand this distinction between fixed cameras and “roaming” cameras, despite the fact that the ICO states that “data protection law” says this. I’m unaware of any law that provides a basis for the assertion (if anyone knows, please let me know). I would, in fact, be prepared to mount an argument that “roaming” cameras are more, or have the potential to be more, intrusive on others’ rights than fixed cameras.
The Article 2(2) “purely personal or household activity” carve-out is a complex provision, and one that has got the ICO into choppy waters in the past (see the trenchant criticism of Tugendhat J in the “Solicitors from Hell” litigation, at paras 93-101, which considered the similar carve-out under the prior law). There are some very interesting questions and arguments to be considered (especially when the gloss provided by recital 18 is taken into account, with its reference to online personal or household activities also being outwith the material scope of the law). However, the ICO’s guidance here will likely serve only to confuse most householders, and – I suspect – has the potential in some cases to escalate private disputes.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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