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Source: New Zealand Privacy Commissioner – Blog

According to an Office of the Privacy Commissioner survey conducted by UMR Research, 41 percent of respondents were concerned with the use of surveillance cameras. From our experience, there’s nothing like putting up a CCTV or surveillance camera to get a strong reaction from nearby residents. For this reason, we recommend that people and agencies use them cautiously.

Can the Office of the Privacy Commissioner (OPC) investigate surveillance issues?

OPC function and jurisdiction is limited to what is set out in the Privacy Act and its related codes and we are only able to investigate a small subset of the complaints we receive.

The Privacy Act applies to agencies. The definition includes any person or persons, whether a registered business or otherwise, in the public or the private sector. The Act will not usually apply to individuals who are collecting surveillance footage for their own use.  

Can my neighbour film me?

It’s important to note in most circumstances, the Privacy Act does not apply to information held or collected by an individual solely or principally for the purposes of, or in connection with, that individual’s personal, family, or household affairs (see s 56 in Privacy Act 1993, and s 27 in Privacy Act 2020).

This means the Privacy Act will rarely apply to your neighbours unless they operate as a business, such as an accommodation provider. There are some exceptional circumstances where we may be able to investigate an individual which we go into more detail about below.  

What if my neighbour is an individual but their surveillance is particularly invasive?

OPC may be able to investigate an individual who collects or holds information for the purpose of the individual’s personal, family, or household affairs, if the information is collected, disclosed, or used in a manner which would be considered highly offensive to an ordinary reasonable person.

This is a high threshold which could, for example, be met in the event an individual is covertly filming parties who are undertaking activities of a highly personal or intimate nature (such as using the toilet). We would ordinarily need evidence of the recording before we could assess a complaint of this nature.

If your neighbour is collecting footage from a shared area, or footage from an area that would otherwise be visible to the public, or from an area where your neighbour could usually see you, this will rarely reach the threshold for “highly offensive”. Even if you neighbour is inadvertently capturing footage within your house, if the footage is taken from an area which would usually be visible to them, this is unlikely to be something we can investigate.

Can a neighbouring business film me?

If you are concerned about the surveillance practices of an agency such as a business, they will have obligations under collection principles 1, 3, and 4.

Under principle 1, an agency must not collect your personal information unless your information is collected for a lawful purpose connected with a function or activity of the agency, and if the collection of the information is necessary for that purpose.

Often an agency will collect information via surveillance cameras to keep its premises safe and secure. If your neighbouring agency is collecting information as a security precaution, this will likely be a proper purpose as required under principle 1.

Principle 3 requires an agency to be open about why they are collecting personal information and what they will do with it. When an agency collects personal information, it must take reasonable steps to make sure that the person knows why it’s being collected and who will receive it. If an agency has erected a surveillance camera, we generally recommend the agency have signage to alert passers-by about the camera and to advise them who operates it. Ideally, an agency should have a full privacy notice available on its website and/or in hardcopy at its reception desk. Staff should also usually be aware of the cameras and be able to field any questions about their use.

Collecting information in a fair and lawful way

Principle 4 prohibits an agency from collecting personal information by unlawful, unfair, or unreasonably intrusive means. When an agency collects personal information, it should do so in a manner which is fair and lawful.

It is worth noting that there are situations when an agency will have a lawful purpose for collecting information and when we would not consider it to be unfair for the agency to conduct surveillance without telling passers-by. For instance, in this case note, OPC considered it reasonable for an employer to put a surveillance camera in a locker room without notice where there had been theft of employees’ belongings on the premises. It is worth noting the locker room was not used as a changing room and there were no toilets nearby. 

It is normal for an individual to feel protective of their living environment and spaces and we receive a high volume of complaints where individuals feel an agency’s use of surveillance is unfair and intrusive. But for a collection to amount to “unfair” under principle 4, an agency may be engaging in threatening, coercive or misleading conduct. We will not usually consider the mere fact an agency is collecting information in or around your living environment as “unfair”. Indeed, it is rare for OPC to be able to investigate a surveillance complaint under principle 4.

If you have concerns an agency is collecting surveillance footage in a manner inconsistent with principles 1, 3 or 4, you should raise your concerns with the agency in the first instance to give them an opportunity to resolve your concerns with you directly. You may also wish to link them to our CCTV guidelines. In the event you are unsatisfied with the agency’s response, and you have evidence of a breach of principles 1, 3, or 4 you have the option to complain to us. But we do not have powers to compel agencies to erect signage, to make changes to their website, or to remove their surveillance cameras entirely.

If you would like to find out what personal information an agency holds about you from its surveillance technology, you make a request for that information under principle 6.

Does this mean an agency can use surveillance and get off “scot free”?

No. Though we can rarely investigate surveillance cameras, there are circumstances where an agency’s conduct will reach a level where they are breaching the privacy principles and where their actions may attract an award of damages in the courts. This is not something we can assess but it is certainly something an agency should keep in mind.

For instance, in Armfield v Naughton there was a tense and confrontational relationship between an owner of a bed and breakfast and his neighbours. The owner set up eight surveillance cameras, three cameras which pointed towards his neighbour’s property, including a children’s play area. The owner refused to talk to his neighbour about the cameras and to respond to letters from the neighbour’s lawyer asking him to change the angle of the cameras. In that case, the Human Rights Review Tribunal found a breach of principles 3 and 6 and awarded the owner’s neighbour damages.

In this case note, a pub installed cameras for the purpose of keeping the premises safe and secure. But it had placed a camera in a men’s toilet area which overlooked urinals. We did not consider the pub had a proper basis for collecting this information and we considered this to be an unfair collection under principle 4. Even with signage in the area, we considered this was highly sensitive information collected in an unreasonably intrusive manner.

If your Office can’t help me, what can I do?

If you would like to know more about the law in your area, you can contact your local council. If you have evidence you are being harassed, this may be a matter to raise with the Police.

We acknowledge law can develop slowly and as surveillance cameras become more advanced and intrusive, there may be scope for legislative development. That said, OPC can only work within the current legal framework.

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