A Scottish couple were awarded damages of £17,268 for the “extreme stress” they suffered as a result of the “highly intrusive” use of CCTV and audio recording systems by the owners of the neighbouring property.
In their section 13 claim for compensation under the Data Protection Act 1998 (Act), the claimants alleged breaches by their neighbours of the following data protection principles:
• The first principle, according to which data must be processed only for lawful and legitimate purposes and in a fair and transparent manner;
• The third principle, which requires that the data being processed is adequate and not excessive; and
• The fifth principle, which requires that any data is retained only for as long as necessary for the specific lawful and legitimate purposes.
The Edinburgh Sheriff Court upheld all breaches in favour of Mr and Mrs Woolley.
In this judgment, the Sheriff has accepted the claimants’ calculation of damages for distress absent any previous authority on compensation in similar cases. The calculation accepted was based on £10 per day per person from the day the CCTV equipment was installed, less one month’s worth of damages to account for the claimants’ likely absences from their property.
The judgment offers an interesting alternative to the awards for distress caused by the misuse of private information made by courts in 2016. In Brown v Commissioner of Police of the Metropolis, where the police force abused its powers to obtain private information about its officer in relation to a disciplinary matter, the court benchmarked its award against the £10,000 awarded in the Gulati case in 2015, the largest award of damages for breach of a person’s privacy at the time. Noting that the misuse did not reach the magnitude of Gulati and ‘doing the best I can’ the judge awarded £9,000. In another case, TLT v Home Office, the judge awarded £12,500 which he noted was ‘not out of kilter with awards for moderate psychiatric and psychological damage’. In that case, the claimants had to move house because they genuinely believed that their security was compromised due to the Home Office’s wrongful publication of refugee data. The judge noted that the word “distress” was “a misstatement and an understatement” to describe the totality of the claimants’ experience. That case was covered in detail by my colleague Brian Johnston in an article published in January.
The present case could, according to commentators, potentially have attracted higher damages, which is consistent with the Sheriff’s observation that the claim of £8,634 per person was ‘modest and reasonable’.
The facts were rather overwhelmingly in favour of the claimants. The evidence was limited to the oral evidence of the claimants and their friends. Also adduced were parts of evidence heard in previous court proceedings between the neighbours, including one audio recording, a harassing text message and their conversations. In particular, one of the defendants had provoked the claimants about his ability to listen to their private conversations in the garden. Perhaps unsurprisingly, the defendants did not file or lead evidence. One of the defendants had previous criminal convictions but, due to an objection, the court made no findings of fact regarding his character.
• The claimants lived in the upstairs flat and the defendants owned the downstairs flat in a converted semi-detached house. The front and garden areas were split in two.
• The defendants ran their downstairs flat as a guest house and did not reside there.
• The CCTV cameras of the claimants covered only their property.