Neighbour's CCTV covering our living area and backyard

[Player]

Hi
Our backyard neighbours have setup a CCTV camera that covers not only their backyard but covers full of our living area and kitchen apart from our backyard. When I talk to him first he said he will do the reposition but I dont see any genuine attempt from him, each time I ask for an update he makes an excuse. And now he is overseas for a good amount of time, so I have no one to reach.

What are my rights under these circumstances and who can I go to ask for help? Literally, we are feeling under constant watch and observation.


(We are in Victoria)

 

[Ponala]

Not much you can do. No laws covering same. There is no 'right to privacy' in Australia.

Privacy issues
The problem arises when you cross the line between monitoring your own property and somebody else’s. If your camera is angled in such a way that it includes coverage of your neighbour’s yard or driveway, then complaints about invasion of privacy could be forthcoming.

There have been a number of recent instances involving irate residents, demanding action from authorities because of what they consider intrusive CCTV surveillance by their neighbours.

And one would have to think that they have some justification for being upset, given that we all expect to be monitored in public places and even welcome it from a public safety perspective, but draw the line at being watched on our own private property.

The law
The complaints made in those situations have largely been ignored because there is currently nothing illegal about home surveillance in Australia.

Some exceptions to this include when:

• The surveillance is of a criminal or voyeuristic nature
• The area being monitored is one where someone would reasonably expect to have privacy, such as a bedroom or bathroom
• The surveillance is of such intensity that it is creating a nuisance, preventing someone from the enjoyment of their property
• The installation of the cameras is the result of a neighbourhood dispute involving threatening behaviour, in which case an apprehended violence order may call for the cameras to be removed.

The main reason there is no law or council by-law governing home surveillance is because it is a relatively new phenomenon and the lawmakers are still catching up. It may require testing in court and precedents to be established before any concrete legislation will emerge.

 

[Scruff]

To add to Ponala's reply, it's important to note that the definition of "private activity" in the Surveillance Devices Act explicitly excludes:
1. "an activity carried on outside a building;" and
2. "an activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else."

In regard to #1 - You can't do anything about a camera that looks into your yard - that's perfectly legal.

In regard to #2 - If you have blinds and they are closed, the camera can't see inside and you have nothing to worry about. If they're open, or you don't have blinds or something else to block the view, then the "circumstances" are different and anyone carrying on any activity inside "ought reasonably to expect that it may be observed by someone else." - provided that other people may have a view of the window.

This is all pretty easy when it comes to front and/or side windows that can usually be seen from the street. But back windows? Well the principle is still the same. If you look out your own windows, you can likely see windows on surrounding houses. If those windows don't have blinds or whatever, then you can likely see inside. The same works in reverse - if you can see into their windows, then it is always reasonable to expect that they can see into your window as well.

In reality, this issue has always existed - long before cameras were ever invented. Any person who walks down a street can look at a window and there is nothing anyone can do to stop that - and that always has been and always will be the case. Therefore, if you want to keep your activities private, the onus always has been and always will be on you to take reasonable steps to ensure that people can't see inside. As the old saying goes, "if you want privacy - don't advertise."

So the only question is: "Does the camera provide someone with a view into your window, where without the camera, noone would have a view into that window?"

If the answer is "yes", then the installation and use of the camera could be in breach of the Surveillance Devices Act** - and that is the question that everyone wants tested in the courts.

If the answer is "no", then it likely wouldn't be a breach. This is because if people already have a view into the window, it would be next to impossible to successfully argue that the existence of the camera makes any difference to your privacy.

** My opinion is that if a camera provides a view into a window that no natural person could already have, then it is definately a breach of the Act. This comes from the definition of "private activity" and the second exclusion as stated above, which uses the words "may be observed by someone else". In my opinion, in this context, the words "someone else" relates to a natural person only and therefore, does not include cameras. If you do include cameras in this exclusion, then you effectively allow any person to point a camera directly into someone elses window, thereby negating all rights to privacy. It is not the intention of the legislation to do that, thus the exclusion should be interpreted in such a way that it applies to being observed by a natural person only.

 

[RosieD]

Hi,

From my understanding, we have no right to privacy from a neighbour's CCTV unless we can prove that their surveillance of us affects our "enjoyment of our property" but in this case this requires costs and legal proceeding to prove.

My area of interest is when a neighbour provides footage from their CCTV to others. This is expected in a criminal case where to the police have requested or issued a subpoena but can a neighbour provide footage from their CCTV to others for any reason?