If you’re living in an apartment complex and sharing common property with other residents, you probably welcome the use of CCTV and surveillance systems to provide security. We saw recently the indispensable role that CCTV played in the investigation of the Jill Meagher case. Accordingly, CCTV has become an accepted means of deterring criminal behaviour, trespass and property damage. However, like many, you may also have concerns about people “watching” you, as you go about your daily business.
A common challenge facing owners corporations and strata companies today is the difficulty in striking the right balance between ensuring the security of its members, and not breaching their rights to privacy. The implications of installing CCTV cameras in common areas such as foyer entrances, car parks and lift access areas are vast, and owners corporations and strata companies alike need to be diligent with respect to the implementation and use of such devices, to ensure they are not being used improperly.
1. Surveillance Devices Act 1999 (“the Act”)
Section 7 of the Act provides that a person (which includes a body corporate) must not knowingly install, use or maintain an optical surveillance device (including CCTV) to record visually or observe a “private activity” to which the person is not a party “without the express or implied consent” of each party to the activity.
Under the Act, “private activity” is defined as “an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves”, but does not include:
(a) an activity carried on “outside a building”; or
(b) 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.
Note that the wording implies that such an activity (i.e. a non-private activity) can occur “inside” a building, provided that there is a reasonable expectation that activities taking place in the area would be observed by the public. Accordingly, there will only be a breach of section 7 if the cameras of the CCTV system are able to record activities:
- taking place inside a person’s residence (e.g. where the camera points directly into a person’s living quarters); or
- taking place in an area where it is not reasonable to expect that the activity may be seen.
Consider for example, the situation where security cameras are installed outside a person’s home, and inadvertently capture images of the road or sidewalk of their street. This would not constitute a breach of the Act. Therefore, arguably images captured of residents walking into common areas would not be considered a breach of the Act. This is because there would be a reasonable expectation that you would not engage in activities of a “private” nature in your driveway or in the foyer entrance of your apartment building.
“Express or implied consent”
Where CCTV captures images of a “private” nature, the requirement to obtain consent from the parties captured in the footage does not apply.
However, arguably the issue of consent with respect to being recorded in common areas may be overcome where appropriate signage is displayed to notify residents that the area is under video surveillance. CCTV and surveillance equipment should also be clearly visible.
For instance, where a resident enters into an area after being put on notice that CCTV cameras are operating in that area, they impliedly consent to the recording of their activities. Displaying signage has been recommended by the Office of the Victorian Privacy Commissioner.
Access to and use of surveillance records
The Act regulates the communication or publication of “private conversations or activities”, and also provides for certain circumstances in which publication or communication of surveillance records are allowed. Such exceptions include:
(a) where “express or implied consent” is provided by each party to the conversation/activity; or
(b) where the communication or publication is made “in the public interest” or “for the protection of the lawful interests of the person making it”.
Accordingly, where surveillance records are provided to law enforcement authorities in the course of uncovering or investigating criminal activities, there would be no contravention of the Act.
In any event, the Act does not regulate or impose limitations on the communication or publication of “public conversations or activities”. Given that activities taking place in common areas would not be considered “private” (because there is a reasonable expectation that you would not engage in private activities in common areas), they would be considered by implication, public. Therefore, there are arguably no restrictions on the use of CCTV that records activities taking place in common areas.
2. Right to privacy
There is no general right to privacy in Australia. Therefore, any activity that is carried out in the public domain that a person ought to reasonably expect would be seen by others, is generally not protected. Consider the situation with celebrities and the media, or Google maps. Accordingly, any activity that would be captured on a CCTV system installed on premises in accordance with the Act, is done so at that person’s risk.
However, privacy analogous rights are contained in equity and common law. Breach of confidence is a cause of action founded in equity that allows a person to protect their “confidential information”. However, the elements establishing a breach of confidence action are very specific and it must be shown that:
(a) the information must have the “necessary quality of confidence”. Accordingly, footage showing a person walking to the garage and entering their vehicle would not be considered “confidential” (authorities have held that an additional component to this element is that the information must also be “valuable”); and
(b) the information was disseminated or used in an unauthorized way – i.e. the information was used in a way that was contrary to the owner’s restrictions.
Owners corporations and strata companies should ensure that cameras are not positioned in a way that facilitates “trespass” into private areas, or areas where you would reasonably expect private activities to occur.
In any event, the positioning of CCTV cameras in common areas must be approached with care to limit potential coverage of private property areas in buildings and ensure the focus is on common property only.
This article is intended to provide general information only and is not a substitute for legal advice. To obtain legal advice tailored to your situation please contact Rudstein Kron Lawyers on (03) 9519 9888.