Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

[2017] SC EDIN 7

A436/16

JUDGMENT OF SHERIFF N A ROSS

 

In the cause

 

ANTHONY WOOLLEY AND DEBORAH WOOLLEY

 

Pursuers

 

Against

 

NAHID AKBAR OR AKRAM

 

Defender

 

Pursuers:   Motion

Defender:   Sanders

 

Edinburgh,     January 2017: the Sheriff, having resumed consideration of the cause, finds the following facts to be admitted or proved:-

1.   The pursuers are spouses who reside in their family home in Edinburgh, which comprises an upper flatted dwelling in a semi-detached house. The defender owns the lower flatted property in the same building. The defender operates the lower storey as a guest-house business. Neither she nor her family live there. Her husband (‘Mr Akram’) carries out day-to-day management of the guest house and is employed as manager by the defender.

2.   The house fronts a main road. At the front there is a car parking area which affords access to the house. The garden to the rear is divided into two garden areas of which the parties each own approximately half. The pursuers’ rear garden is accessed by a pathway to the side of the house. The defender’s rear garden area is accessed through a lower, basement doorway to the rear. The dividing fence is perpendicular to the rear of the house. Neither party has access to the rear garden area of the other. The defender’s rear garden is seldom or never used.

3.   In about 2013 the relationship between the parties broke down. They each made allegations against the other in relation to the use of the guest house, and each of Mr Akram and Mr Woolley were the subject of court proceedings. All the parties, and Mr Akram, deny wrongdoing.

4.   Both the pursuers and the defender have installed CCTV systems. The pursuers’ equipment is attached to the outer wall of their property, and records images of their own external property only. Their external property includes part of the car-parking area to the front, a pathway and stone access staircase to their external door at the side, and a garden area to the rear of the house.

5.   In about October 2013 the defender installed CCTV monitoring equipment on the external wall of her lower property, which records video data. In addition, the defender installed audio recording facilities.  The video and audio recording equipment has operated since that date. There are four cameras and four audio boxes. Video and audio recording operates twenty-four hours a day and is permanently set to record. The data storage capacity of the system is approximately five days’ data, after which the system records new data over stored data. Accordingly, up to five days’ data is retained at any time.

6.   From October 2013 the defender’s CCTV cameras were deliberately set to cover the pursuers’ private property. The defender and Mr Akram knew the extent of the coverage, and neither took any precautions to ensure that coverage of the pursuers’ property was minimised or avoided. The cameras to the front of the house record every person approaching the pursuers’ home. The cameras to the rear were set deliberately to record footage of the pursuers’ private garden area. There was no legitimate reason for the nature and extent of such video coverage. The nature and extent of the camera coverage were obvious to the pursuers, as they could see where the cameras were pointed. The coverage was highly intrusive. The defender realigned the rear garden camera in April 2015. Coverage by the defender’s system remains intrusive. The defender has remote access to the footage.

7.   From October 2013 the defender also made audio recordings of the area around the pursuers’ property. Mr Akram lodged these audio recordings in subsequent court proceedings, and they demonstrated an ability to pick up conversations well beyond the pursuers’ premises. There are four audio boxes. The rear audio boxes are capable of picking up private conversations in the pursuers’ rear garden. Mr Akram, on one occasion, taunted the pursuers about his ability to listen to them as the pursuers conversed in their garden. The defender and Mr Akram were aware of this at all times, and made no effort to minimise or avoid the said audio recording. The nature of the coverage was obvious to the pursuers. Two audio boxes were installed immediately below front bedroom windows. The pursuers feared that conversations inside their home could also be monitored. The said coverage was highly intrusive.

8.   The defender has been the data controller since October 2013. She registered as data controller for the purposes of the Data Protection Act 1998 (the ‘Act’) in March 2015. She remains so. She failed to give notice between October 2013 and March 2015 that she was data controller.

9.   The defender’s system was installed without notice, consultation or information. She did not inform the pursuers of the purpose or extent of coverage. Visitors to the property receive no notice that their actions and speech are being recorded. The pursuers have made repeated requests for information and copies of the coverage. The defender has consistently refused or delayed to divulge any information. The pursuers have sought assistance from the Information Commissioners Office (the ‘ICO’). The defender has made minimal disclosures as a result of that correspondence. The defender wrongly informed the ICO that her premises were her own private residence.

10. The data processing by the defender’s system is intrusive, excessive and unjustified. It is unnecessary in relation to any legitimate purpose. The pursuers have made the defender aware of their concerns and she has refused to consider or to restrict the coverage. She has given minimal and inadequate information. The defender has failed to observe the first, third and fifth principles of data protection. The said processing was not consensual. The method of obtaining data was and remains oppressive.

11. The defender has failed to give notice or information about the system.  No sufficient notice is given about the extent of data processing. She has at all times resisted, delayed or failed in giving relevant information. She gave no notice of installation, or of coverage, or of purposes of data processing, or the use made thereof. She has given the bare minimum of information throughout, and only in response to repeated requests. Her processing of the pursuers’ personal data has not been fair.

12. The defender has failed to operate any data retention policy. The retention of data is five days, but that is solely a function of the technical recording ability of the defender’s system. Five days’ retention of data exceeds any legitimate purposes. The defender has maintained that the defender’s system is to record any confrontation between the parties. If true, there is no legitimate requirement to store data for any more than one day. The data is retained for longer than is necessary. Her processing of the pursuers’ personal data has not been fair.

13. The pursuers and their family have suffered considerable distress since October 2013. They have two adult children of whom one still resides there. They have all been severely restricted in the use and enjoyment of their own home. They voluntarily restrict their external movements. They restrict their conversations, both inside and outside their home, as they are aware that they are being recorded and do not know the extent of the coverage. They require to warn visitors about the coverage. They cannot use their rear garden at all, as they do not want their activities to be recorded. They have suffered extreme stress as a result of the defender’s unfair processing of their personal data.

And finds in fact and law that;

1.   The video and audio recordings made by the defender’s system are personal data for the purposes of the Act.

2.   The pursuers’ rights under the Act have been breached by the defender’s failures in relation to their personal data. They have not been informed about the processing of their data, particularly the extent of coverage and the use being made of it. They have not received copies of this data. Their right to prevent or moderate processing has been breached.

3.   The defender has failed in her duties as data controller. She wrongfully processed data without being registered between October 2013 and March 2015. She did not comply with the data protection principles from October 2013 onwards. She has not complied with her duties under the Act.

4.   In particular, the defender has, in relation to the pursuers’ personal data, breached her duty to comply with the data protection principles, namely each of the first principle, third principle and fifth principles in Schedule 1 of the Act.

5.   The pursuers have both and equally suffered distress as a result of the said surveillance since October 2013. They are entitled to compensation in terms of the Act. The pursuers’ claim represents a modest and reasonable assessment of the compensation to which they are entitled.

THEREFORE sustains the third and fourth plea-in-law for the pursuers, repels the defender’s pleas-in-law; finds the defender liable to make payment to the first pursuer of the sum of EIGHT THOUSAND SIX HUNDRED AND THIRTY-FOUR POUNDS (£8,634) STERLING with interest at the rate of four per cent a year from the date of decree until payment; finds the defender liable to make payment to the second pursuer of the sum of EIGHT THOUSAND SIX HUNDRED AND THIRTY-FOUR POUNDS (£8,634) STERLING with interest at the rate of four per cent a year from the date of decree until payment; appoints the cause to a further hearing on expenses on a date to be afterwards fixed, unless the parties otherwise agree final disposal.

 

Note:-

[1]        The Data Protection Act 1998 (the ‘Act’) regulates the collection and storage of personal data, which includes the recording of images and audio obtained from CCTV surveillance. The Act sets out eight data protection principles, which can be summarised as follows:

1. Processing must be fair and lawful;

2. Processing of personal data must be for one or more specified purposes;

3. Processing of personal data must be adequate, relevant and not excessive;

4. Processing of personal data must be accurate and up to date;

5. Personal data shall not be kept for longer than is necessary;

6. Personal data will be dealt with in accordance with the data subject’s rights;

7. Appropriate technical or organisational measures must be taken to keep the data secure;

8. Data transferred outside the EEA should be subject to an adequate level of protection.

 

[2]        In this action the pursuers claim that the defender is in breach of three of these principles in relation to surveillance of their private family residence, and seek compensation.

[3]        The pursuers are spouses who live in Edinburgh. Their family home comprises the upper storey of a two-storey semi-detached stone-built villa on a main road. There are four windows, including a bay window, which front the upper floor. Access is taken by a stone staircase to the side of the house. They have two adult children, one of whom still resides with them.

[4]        The defender owns, and her husband (‘Mr Akram’) runs and manages, the lower storey property, which they operate as a guest house.

[5]        There is a private car parking area to the front and side of the house of which the pursuers own one side and the defenders the other. The house is built on a rearward-facing slope, so there is a basement storey at the rear, and the defender and her husband own the basement and first storeys. The rear garden area is divided approximately in half, with a dividing fence perpendicular to the house, although there is a narrow fenced area in front of the defender’s basement windows, and which affords access from the defender’s basement door to their garden area. Photographs showing various aspects of the house are lodged by the pursuer and I accept these as accurate.

[6]        The pursuers’ use of their property is as their family home. The defender’s use of their property is as a business. She does not reside there. It is run as a commercial guest house or hostel.

[7]        The pursuers purchased their property in about 2012. The defender already owned the lower tenement, and it was already in use as a guest house. The pursuers accepted this and there was no issue between the parties. The guest house had a manager, but management was taken over by Mr Akram prior to 2013. Mr Akram attends the premises frequently to carry out management duties. The defender rarely attends.

[8]        In 2013, the pursuers received a letter from Edinburgh City Council intimating that the defender had lodged proposals to change the guest house into a bail hostel for up to 18 people awaiting trial. The first pursuer required to work away from home during the week, and was concerned at leaving his family next to such a hostel. They objected, and the application was refused in April 2013.

[9]        Almost immediately, there was a marked deterioration in their relationship with the defender and Mr Akram. The pursuers made various complaints to the local authority about aspects of the business. Mr Akram complained about them and verbally abused Mrs Woolley. The defender wrote to the pursuers by email dated 25 July 2013 setting out a list of complaints ‘in connection with the Guest House business which we run from the above premises’. The relationship between the pursuers and the defender and Mr Akram broke down. Both sides complained to the police about ongoing behaviour, and both Mr Woolley and Mr Akram found themselves charged with offences, at different times. There are still ongoing incidents. Various examples of correspondence are lodged, outlining allegations by the parties against each other. These were not the subject of detailed evidence, and I am not invited to examine these further. It is sufficient to note that there is a history of disputes between the parties.

[10]      The pursuers became concerned about the security of their home and their poor relationship with the defender and Mr Akram, and installed closed circuit television (CCTV) cameras on the walls of their property. After some correspondence about siting, the defenders make no complaint about these cameras, which appear to solely monitor the pursuers’ own property. The pursuers do not record sound.

[11]      However, in about October 2013, the defender installed CCTV equipment on the external walls of the lower property. The pursuers have complained that this is intrusive in its coverage, that it has audio coverage, that it is unjustified, and they have made requests for information which the defender has refused, giving rise to the present proceedings.

 

The Evidence

[12]      The pursuers both gave evidence, as did their daughter, and two family friends.

[13]      The defender elected to lead no evidence. Their counsel’s position was that it was for the pursuers to prove their case, and that the evidence was insufficient for that purpose.

[14]      During the evidence objection to the admissibility of evidence was taken on behalf of the defender in two principal respects, namely relating to the failure to recover and lodge the CCTV system and ancillary items, and also to reference of a transcript of evidence in previous proceedings. Before proceeding to consider the evidence, it is appropriate that I deal with these questions first.

 

The Best Evidence Rule

[15]      Objection was taken to the oral evidence of both pursuers in relation to the content of video and audio recordings. Counsel objected to oral evidence being led from the pursuers relating to the content of the video footage, and separately to evidence being led about the audio coverage, without the original recordings being recovered and lodged. This submission relied on the best evidence rule. No footage or audio recording was lodged. No CCTV equipment was recovered or lodged. No audio equipment was recovered or lodged. The best evidence was, counsel submitted, the video and audio recordings themselves. The secondary evidence of the pursuers as to what those recordings contained should not be admitted. He submitted that if this submission were correct, the action must fail owing to lack of evidence. The evidence was heard subject to a subsequent ruling on competency and relevancy.

[16]      The objection was renewed in submissions. Counsel handed up some authorities, but did not discuss them at length. Having considered the authorities, I have come to the view that the pursuers’ oral testimony relating to the processing of data is not, in the particular circumstances of this case, excluded by the best evidence rule. I repel counsel’s submission, for the following reasons:

[17]      The best evidence rule is the rule, not often founded upon in practice, that the court should exclude secondary sources of evidence if the primary source is available, unless sufficient failed efforts have been made to obtain the primary source. It is frequently circumvented by parties’ agreement that copies can be treated as if they were principals, or by agreement as to the content. It is therefore not an absolute rule, because a court does not look behind the parties’ agreement, and will consider secondary or copy evidence if the parties agree it should do so. The court will also consider secondary evidence if there is good reason for the primary evidence not being available.

[18]      The principle behind the rule is the prevention of unfair disadvantage to one party, which may be hampered or thwarted in examining, testing or challenging that evidence:

“In my opinion the best evidence rule is essentially tied up with questions of prejudice in the sense that if there is better evidence than that adduced before the court, the party affected by it is prejudiced in his attack upon it and the proferring party thus gains an unfair advantage.” (per Lord Johnston in Stirling Aquatic Technology Ltd v Farmocean AB (No 2) 1996 SLT 456.

 

[19]      In McGowan v Belling 1983 SLT 77, the pursuer sought reparation for fire damage caused by a defective heater, but failed to lodge the heater. They led instead expert evidence based on examination of a similar model, which concluded that the design of the connectors within the heater created a fire risk. The court sustained the objection and found the cause of the fire not established. It did so, however, not simply as a matter of failure to follow correct procedure, but because the defender was prejudiced in its presentation of the defence. The pursuer’s experts had found defects in, and blamed, the connectors in the similar heater, but the defender was unable to ascertain whether the pursuer’s heater had the same connectors. Further, the defender had been deprived of a chance to examine the pursuer’s heater. Such examination may have revealed a competing cause for the fire. No sufficient excuse had been proved for the failure to lodge the original, which could have been made available. The heater should have been lodged, as best evidence both of its condition at the time of the fire and also of its condition at the time of expert examination.

[20]      In Scottish & Universal Newspapers v Gherson’s Trustees 1986 SC 27, the pursuer failed to lodge accounts which lay at the heart of a claim for breach of warranty. Expert evidence, led from a witness who had read the originals, was not admitted. The Lord Ordinary described the prejudice to the defender of being unable to see the original accounts as ‘substantial, and indeed possibly critical’, and described the missing documents as ‘absolutely essential to the proof of the two important issues’. The appeal court observed that the missing documents ‘represent the fountainhead of the investigation’ and were the source material for five weeks of expert investigation. The pursuers had not done sufficient to excuse their omission.

[21]      In Japan Leasing (Europe) plc v Weir’s Tr (No 2) 1998 SC 543, documents which showed the assignation of certain contractual rights were not lodged. The defender was a trustee in sequestration, and had not seen or been party to these documents. Three copy documents were refused probation. The court rejected any reliance on the Civil Evidence (Scotland) Act 1998 in attempting to treat these documents as admissible hearsay. It was not enough to lead evidence of whoever copied them. The originals had been available, but were not lodged. The prejudice to the trustee, who was in effect working blind, is patent. In each of these three cases, the failure to lodge the best source of evidence served to restrict and prejudice the ability of the other party to investigate and challenge the case.

[22]      Turning to the present facts, it is clear that there is no prejudice to the defender because, unlike the foregoing cases, the defender has been at all times aware of what the footage shows. She and Mr Akram own and operate the defender’s system. They were, and remain, in complete control of the equipment, and could examine or lodge this at her discretion. The defender’s correspondence holds out Mr Akram as the manager of her property, but also refers to the ‘business which we run’. The defender has, or at least can easily obtain, full knowledge of what the CCTV equipment does record. She has given evidence in other proceedings (see below) that this is the case. Any failure by the pursuers to lodge these had no effect whatsoever on the preparation of her case, and she cannot claim any prejudice. The best evidence rule does not, therefore, operate in these circumstances. The defender’s stance appears to be no more than a tactical position. She suffers no disadvantage.

[23]      Further, even if I were wrong in this, secondary hearsay can be relied upon where the primary source is not and cannot with reasonable diligence be made available. Here only five days’ worth of material is available, at best. The defender’s pleadings state: ‘The CCTV records for up to 5 days and records over itself’. The defender and Mr Akram gave similar evidence on oath in other civil proceedings (discussed below). It follows, therefore, that the pursuers were aware during preparation of their case that only five days’ footage would be recoverable at any one time. This action was raised in June 2016, by which time the defender’s rear garden camera had been re-aligned (see below) and the defenders had denied on oath that any audio was constantly streaming.

[24]      Consequently, it would be pointless to attempt to recover this data.  According to the defender, no recording older than five days, and possibly less (see transcript evidence), is in existence. It follows that the pursuers cannot be faulted, in an action raised in 2016, for not seeking to recover any such evidence. They are entitled to rely on the statements of the defender, whose system it is.  The pursuers were therefore clearly justified in making no further attempt to recover and lodge the historical recordings.

[25]      Further, even if I were wrong on the foregoing, the pursuers did in fact attempt to recover the relevant recordings by extra-judicial, statutory means. The correspondence shows (for example 5/24 of process (2013) and 5/42 (2015)) their repeated requests under the Act for this material. The defender refused (5/28) to give access to any such material. By 2015 her position was (5/45 and 5/46) that she did not hold any such material. The defender cannot complain that the pursuers took her at her word. They cannot be criticised for failure to recover material that the defender controls and has refused to produce, and which the defender maintains is either non-existent or irrelevant. This appears to be no more than an exercise in wilful obstruction by the defender, and cannot found a claim of prejudice, or unreasonable failure.

[26]      It follows that, even if the pursuers’ oral testimony might not form the best evidence, it would nonetheless be admitted under this exception, being the best remaining secondary source of such evidence.

[27]      Counsel’s submission went further, and criticised the failure to recover and lodge the full system, which I understood to include cameras, audio boxes and recording devices. I cannot agree with counsel’s submission. First, if the defender’s statements were correct, this would be a pointless, not to mention disproportionately invasive, exercise, as lodging this equipment would not demonstrate what the recordings showed. Second, this is not a case like McGowan (above) where the quality of the equipment was relevant. The equipment itself is not under scrutiny, particularly where the fact of recording, and the five-day maximum retention period, are matters of admission. Third, lodging the equipment would give no guidance as to the extent of coverage. I cannot identify any profitable purpose to lodging the equipment. Fourth, as the best evidence rule is based on prejudice to the other party, there is clearly no prejudice to the defender because she can examine the equipment any time she chooses, as she has control and possession.

[28]      Last, and in any event, even if I were wrong on the foregoing, the best evidence rule does not exclude proof of the same events or information by alternative (in other words, other than derivative or secondary) means (Walker and Walker; The Law of Evidence in Scotland (fourth edition) paragraph 20.1.2). The focus of this action is not the content of footage but rather the defender’s long-term activities in failing to administer data in certain ways. It is not in the same vein as the authorities, which founded on defects in the item, or on the wording of particular documents. The video or audio recordings are not the subject of this action, but are relied on as a source of evidence about the defender’s actions in breaching data protection principles. The pursuers have given primary evidence about what they have witnessed relating to the positioning of cameras and audio boxes, the behaviour of Mr Akram in gloating over what he could hear them saying (see below), and other aspects. This is all admissible evidence. In addition, the pursuers gave evidence that they had seen and heard the relevant video and audio footage, which had been shown in related criminal proceedings against Mr Akram, a year or so prior to the present case. They had witnessed this in court. Mr Woolley spoke to Mr Akram having lodged (and played in court) recordings, including the speech of a neighbour, Mr Bryce, who was standing 20 metres away from the device, outside a neighbouring house one house further along the road from the pursuers’ house.  Mr Woolley had also been able to hear, on that recording, sounds on the opposite side of the main road which ran nearby.

[29]      This is direct, primary evidence and is by itself sufficient to prove the case, if accepted. Consequently, even if I were wrong on all of the foregoing, the best evidence rule would still not exclude these other sources and pieces of evidence in the case.

[30]      For all these reasons, I repel counsel’s objection to the verbal evidence relating to the content of the audio and video recordings. It is admissible evidence.

[31]      On a somewhat subsidiary note, counsel also objected to the use of evidence given in other proceedings involving the same parties.

 

Evidence of Statements in Other Proceedings

[32]      The defender’s counsel objected to a transcript of proceedings dated 2 September 2015 in another action (a civil action between the pursuers and their family against Mr Akram) being put to witnesses. This objection was at first founded on the fact that the transcript lodged was not signed or authenticated. This objection was met later in the proceedings by the pursuers’ agent obtaining and lodging the original signed transcript. Counsel withdrew the objection as to admissibility at that point. He maintained, however, that the material was insufficient to prove the pursuers’ case. It is appropriate that I deal with that here.

[33]      The transcript (5/15) was of a commission held on 2 September 2015, for the recovery of documents under court order, in a civil case by the pursuers, and their two children, against Mr Akram. Mr Akram and the present defender were both cited as havers. They gave evidence on oath about the whereabouts of certain real evidence.

[34]      The transcript shows the sworn evidence included the following:-

[35]      At page 13, Mr Akram confirmed that the system at the guesthouse was four cameras, two at the front and two at the rear. Each camera contained a sound recording device. He stated that the system ‘is always running’ (at page 14). The information is stored on a hard drive built into the DVR system. It automatically records over itself. The amount of recording depends on the amount of movement being recorded. There is a maximum of five days’ recording. The system is operated by Mr Akram (page 16). The defender operates a data retention policy. He referred to the system being for his own protection ‘because I did have to spend a number of hours in custody and appear before a Sheriff, due to false allegations that was proven by audio and CCTV’. He confirmed that he was employed by the defender.

[36]      The defender also gave sworn evidence. At page 34 she confirms that the system ran all the time, and that there was up to five days’ data on the system at any one time.

[37]      In my view, counsel was correct both to make, and to subsequently withdraw, his objection to admissibility.  He was entitled to object to an unsigned, unauthenticated copy being relied upon in evidence. However, this was cured when the original signed transcript was belatedly lodged.

[38]      In my view, any evidence given on oath at the commission is capable of amounting to an extra-judicial admission. It is therefore admissible – see Walker and Walker (above) at paragraph 9.4.

[39]      Subsequently, however, counsel appeared to restate the objection to this transcript evidence in his written submissions, under reference to section 3 of the Civil Evidence (Scotland) Act 1988. In my view this further objection is misconceived. In my view the transcript evidence is admissible evidence, as it constitutes an extra-judicial admission given on oath, and whose provenance is unassailable. Section 3 of the 1988 Act is permissive, not exclusive, in allowing reference to an extra-judicial statement for questions of credibility. The pursuer’s agent presented the transcript as recovered from his firm’s records, having been received during the earlier litigation, and purporting to be signed by both commissioner and shorthand writer. I can accept that this statement of authenticity made in court, by an officer of court, meets any stateable objection as to authenticity and accuracy. The content is admissible, and I have had regard to it.

[40]      In the event, this evidence does not add much to the admissions already made on record.

 

Findings on Evidence

[41]      Turning to address the various elements of the claim, I record that I was able to accept the evidence of all the witnesses as credible and reliable. The defender did not give or lead evidence. I have therefore recorded what follows as an accurate narrative of events based on proven facts, unless otherwise indicated. I found the evidence to be inherently credible, and supported by photographic and documentary evidence, much of the latter originating from the defender’s own hand. The pursuer submitted that where the defender did not lead evidence I was entitled to draw the most favourable inferences from the pursuers’ evidence (William Lippe Architects v Innes [2007] CSIH 84) and that the defender could not rely on contrary averments in the pleadings where evidence had not been led. Counsel did not demur, and I agree those propositions are sound statements of the law. In the event, I did not require to rely on inferences, as I was able to accept that the pursuers’ evidence was inherently credible and reliable. For completeness I record that a USB stick was lodged in evidence, but it was referred to only in passing and was never in evidence. I do not know what is contained on it, it formed no part of the evidence, and therefore it is not available to me to consider.

 

The Defender’s Surveillance Equipment

[42]      On the evidence, in October 2013 the defender and Mr Akram installed four CCTV cameras on the external walls of the defender’s property. They also installed four white boxes, which the pursuers thought to be audio microphones. Mrs Woolley instructed a letter of complaint by her solicitor to the defender dated 3 November 2013 (5/24 of process). It narrates that the cameras appeared to capture her private family life, and asked that the cameras only cover the defender’s own property, and that any audio equipment be switched off. Two boxes were positioned over the pursuer’s garden, and two boxes were installed under bedroom windows, including the pursuers’ own, to the front. The letter also requested all recordings made. The defender refused the access request, and made no comment on whether audio data was being processed.

[43]      Mrs Woolley took the photographs in process, and these show the equipment referred to. She confirmed that the defender had never consulted them or asked permission before the equipment was installed, and had given them no information about the equipment. There were no notices warning that monitoring and recording were in process.

 

Whether Video Recordings Made of the Pursuers’ Premises

[44]      The Woolleys’ evidence was, and I accept they have proved on the balance of probabilities, that the video cameras installed by or on behalf of the defender were deliberately positioned to monitor the pursuers’ external premises. The apparent positioning of the cameras shown on photographs 5/3, 5/10, 5/11 and 5/12 tend to support Mr Woolley’s evidence that the cameras overlooked the pursuer’s property, either solely or mainly. Mrs Woolley has attempted to show the view in photograph 5/5 which she took, which shows the pursuer’s rear garden. Photograph 5/4 is a posed photograph showing two white boxes and a camera (next to the defender’s open window), which cover the rear garden.

[45]      It is evident that this coverage is not simply an unfortunate side-effect of legitimate coverage of the defender’s own premises. For example, there is no apparent justification for a camera overlooking the pursuers’ garden, as there is no property of the defender which is covered. The pursuers both spoke to its alignment pointing principally at their garden, and the lack of justification - not only did it point solely at the pursuer’s garden, but the defender’s back garden was never used and is unkempt (photographs 5/2, 5/9), so it would never cover any ‘confrontation’ as the defender claimed, as nobody used that area. The defender and Mr Akram subsequently re-aligned that camera in about April 2015 in response to the pursuers’ complaints.

[46]      The two cameras at the front of the property point at the pursuers’ property (photograph 5/12), namely the driveway and entrance area. The defender and Mr Akram can therefore monitor every movement into and out of the pursuers’ home. They can monitor who visits, and when the pursuers are at home or when the property is empty. This is of particular concern to the pursuers as they allege that they have learned that Mr Akram has several criminal convictions. They know this because of evidence given at his trial. Counsel for the defender took timeous objection to discussion of this evidence and I sustained that objection. I will not therefore make any finding of fact regarding Mr Akram’s character.

[47]      Mr Woolley’s evidence was that the cameras were activated at all times, because a ring of lights around the lens can be seen during hours of darkness (photograph 5/6). The pursuers’ cameras (visible in some photographs, and pointed at their own property) have the same manufacturer and are the same model, and therefore the pursuers were able to confirm that they are capable of recording images in darkness. The defender and Mr Akram gave evidence at commission that the system was always running. I accept that the recording equipment is permanently running.

[48]      Following correspondence in about April 2015 (see below) the defender caused the rear camera to be turned from its original alignment (photograph 5/10) to no longer cover the pursuers’ rear garden (5/7).

[49]      Mrs Woolley gave evidence that Mr Akram had told her, in conversation on an unidentified date, that he was able to view the camera footage from a remote location, and therefore did not even require to be at the premises. This was very disturbing for her. The Akrams, she thought, ‘hated’ them, due to a series of unrelated events involving, amongst other things, objections about the use of the guest house as a bail hostel. It was therefore very disturbing that the Akrams were able to monitor the pursuers’ movements outside whenever they chose. On one occasion when away from the house Mr Akram had texted her to tell her they knew her daughter was in the house. She found this extremely sinister. She spoke to some of the wider disputes with the Akrams, which is part of a wide-ranging set of complaints that each party has against the other. An indication of this wider dispute is given in the correspondence lodged.

[50]      On this evidence, I accept that the defender and Mr Akram have installed a CCTV system and audio system which was primarily aimed at monitoring and recording the pursuers’ movements and activities, and that there was little or no objective justification for this. There is no apparent attempt to limit the scope of information capture, or to restrict it to the defender’s own property. Even after the camera covering the pursuer’s garden was realigned, the overall surveillance remains intrusive and unjustified. There are no warning signs, or indication of who the data controller might be, or the purpose of any such surveillance.

 

Whether Audio Recordings Made of the Pursuers’ Speech and Activities

[51]      I accept that, on the balance of probabilities, the four white boxes installed on the external walls (shown in photographs 5/4, 5/5, 5/11, 5/12, 5/25 and visible in other photographs) are audio recording units, and are permanently recording the pursuers’ activities. There are four such boxes: two on the front walls, just below two of the bedroom windows (although these appear subsequently to have been moved down the wall), and two on the rear walls (photographs 5/10, 5/11).  Mr Woolley spoke to having researched audio devices on the internet, and seeing devices which looked identical to those units, which were capable of recording audio. More significantly, the pursuers had listened to audio recordings made by the defender, because these were played as part of a defence in the course of a court hearing at Edinburgh Sheriff Court. That court hearing resulted from Mr Akram facing criminal charges relating to his behaviour towards the pursuers. His defence included an audio and video recording of the garden and other areas outside the pursuer’s home, made with the said equipment on the defender’s property. The parties’ voices were heard in the recording, as was that of a neighbour, Mr Bryce, who lived further along from the Woolleys. Mr Woolley’s evidence on this was not contradicted, and I accept it as correct. I accept that the defender and Mr Akram have installed audio-recording equipment on their external walls, and that it is used to record speech and other sound, including the pursuers’ family talking.

[52]      The pursuers suspect that this equipment is also capable of recording speech inside their house, because the boxes are installed just under their bedroom windows. They conduct themselves with restraint as a result, at high emotional cost. They do not have any evidence about internal recording, and therefore I will not make such a finding. The only evidence showed at Mr Akram’s trial was of external recording. The pursuers should not have to suffer such uncertainty. The defender has refused to enlighten them.

[53]      Mr Woolley spoke to an early incident when the pursuers’ family were using their garden. Mr Akram opened his back door and laughed at them, putting his hand to his ear to mime listening to their conversation. He was taunting them. The defender has never disputed that the boxes are audio equipment. She has claimed to use it only occasionally when Mr Akram is present at the property, which the pursuers don’t believe. She chose not to give evidence on this. I do not accept her use of the system is limited in this way.

[54]      In the transcript (discussed above) at page 13, Mr Akram confirmed that the system at the guesthouse was four cameras, and that each camera contained a sound recording device. He stated that the system ‘is always running’ (at page 14). The information is stored on a hard drive built into the DVR system. It automatically records over itself. The amount of recording depends on the amount of movement being recorded. There is a maximum of five days’ recording. The system is operated by Mr Akram (page 16). The defender ‘operates a data retention policy’, but this appears to be no more than the length of the recording.

[55]      Mrs Woolley spoke to the defender’s contention that the recording was not used ‘procedurally’ (5/45). She was clear that the camera lights were permanently on, and there was no reason to think that the audio was switched on and off.

[56]      In light of the defender’s and Mr Akram’s evidence in the transcript, and the pursuers’ evidence, I find that the equipment was permanently recording, both audio and video, the external premises of the pursuer’s home, and in doing so recorded the activities and conversations of the pursuers, their family and visitors, to the front and rear of the property. Only in about April 2015 was the rear garden camera moved to record the defender’s own rear garden. The audio recording, however, continued as before.

[57]      In summary, the Woolleys find themselves under permanent surveillance, both audio and video, without knowing why, or who is watching. They do not know who has access to any recordings. They do not know if the data is secure or is shared or intercepted by unknown third parties. They do not know which conversations can be heard, or even whether the privacy of their family home is being violated. It is difficult to imagine a more intrusive use of surveillance equipment.

 

Whether Relevant Data was Processed

[58]      From at least mid-July 2013 onwards the parties were in correspondence about a number of complaints they have against each other. There are allegations and counter allegations, which do not form the substance of this case, and I make no specific findings about these. Many of these complaints are set out in the correspondence lodged.

[59]      By letter dated 3 November 2013 (5/24) the pursuers raised the issue of CCTV surveillance, stating the belief that it covered their private family life in various respects. It requested that surveillance be of the defender’s own property only, that audio not be recorded, and that recordings be provided, under reference to the 1998 Act. The defender belatedly refused on the purported basis that the CCTV was not covered by the 1998 Act (5/28). She did not deny that such recordings were made.

[60]      Correspondence with the Information Commissioner’s Office (‘ICO’) was commenced. The ICO told the pursuers (5/27) that the defender claimed their property was a private residence and therefore exemptions applied. This claim was patently untrue (5/43). Subsequently in January 2015 the ICO formed the view that this exemption did not apply (5/35). After further correspondence the ICO provided a letter dated 12 March 2015 (5/39) which narrates that they assessed that there was non-compliance, but that they were satisfied processing was currently Act-compliant, an apparent contradiction. By that stage the pursuers had made three data requests to the defender, with no response.

[61]      The defender registered as data controller under the Act on 23 March 2015.

[62]      The pursuers made a subject access request on 3 April 2015 (5/42). They had no idea for how long the video or audio recordings were kept. The defender asked for a fee of £10 per person (5/43). She confirmed that the defender’s property was business premises. They paid the fee.

[63]      Following this correspondence the defender caused the rear wall camera to be turned to no longer cover the pursuer’s garden.

[64]      The defender denied in June 2015 that she retained any images (5/45, 5/46). She confirmed that some data would be forwarded. Images are overwritten after a period. The defender has refused all requests to give them sight of the data, or any further details. No further data has been provided.

[65]      On this evidence, I accept that there was relevant data to which the Act applies both before and after March 2015. Nothing material changed in March 2015, save that the defender registered as data controller. I accept, on the balance of probabilities, that prior to that date the defender was either the sole or joint data controller from October 2013 onwards. On the evidence, only the defender or her husband could be the data controller. I discuss this further below.

 

Effect of Surveillance

[66]      Both of the pursuers spoke of the effect this surveillance has had on their private lives. They feel violated, and feel stress, anger and frustration. They were unable to get help from any quarter, whether the police, local authority, legal advice or the ICO. They could not use their garden, they felt they could not invite visitors and could not converse freely. This effect was particularly bad when they knew that the party monitoring the footage, namely Mr Akram, had expressed malevolence towards them, and criminal convictions had been revealed in court. The audio coverage was the worst, as they had to self-monitor what they said, even inside the house, as they could not be sure of coverage. Mr Woolley described the effect on Mrs Woolley as devastating.

[67]      Mrs Woolley confirmed this evidence. The only purpose she could see was to ‘upset and harass’. The defender and Mr Akram did not live there. The coverage had no legitimate purpose. The pursuers’ children could not use the garden. She had been ‘horrified’ and very upset when she saw the footage in the court action in 2014, because they had not realised how much was audible. The pursuers had spoken of private matters in the garden, such as their children and their finances. One audio box was below their bedroom window (5/12). They did not know if they could be recorded inside. She became tearful during her evidence. The equipment had been installed in October 2013. They had been trying to resolve matters since late 2013. They had not succeeded. The audio boxes to the front had been moved slightly, and the rear camera had been angled away, but otherwise matters remained as they were.

[68]      The pursuers’ evidence was challenged on the basis that there was bad blood between the parties. They both accepted that there was. I did not consider this tainted their evidence, as it was supported by photographs and the defender’s correspondence.

[69]      I was favourably impressed with the self-control and the restraint of the pursuers in giving evidence. Their evidence is largely uncontradicted. I have no reason not to accept their evidence as credible and reliable, supported as it is by the available photographic and documentary evidence. Counsel placed some reliance on the existence of a legal expenses policy, but there is no logical impact on credibility and reliability, and this point was not insisted in. I will disregard it as irrelevant. The pursuers accepted that they did not know who the data controller was until the defender registered in 2015. They were challenged that the use of the property was unaffected, but did not accept this, and I accept their evidence that their use of the garden area, and their enjoyment of free movement and behaviour, is substantially and fundamentally harmed.

[70]      The pursuers led three further witnesses, including their daughter, to speak to the harm suffered due to the surveillance of the property. Patricia Bowerbank and Joyce Abrante are long-standing friends of the Woolleys. They all spoke to how upset and stressed particularly Mrs Woolley was (who lived in the property when her husband worked in London, during his former employment there). They knew of a number of disputes between the parties, but the recording equipment was a principal source of distress. They had all had been warned not to talk about personal things when visiting the Woolleys, for fear of being monitored and recorded. They all found the situation unacceptable. Their evidence was clear and compelling, and I accepted it.

 

The Law on Data Protection

[71]      There was no dispute between the parties as to the law, and it is not disputed that a remedy in damages is competent. The legal structure can therefore be described briefly.

[72]      The Act regulates the processing of personal data. An individual who suffers damage by reason of any contravention of the 1998 Act is entitled to compensation from the data controller for that damage (1998 Act section 13).

[73]      The Act gives individuals rights in relation to their personal data, and these are set out in sections 5 to 15. Broadly, the entitlements include being informed whether their personal data is being processed, and if so to be given details of the data and the purposes behind the processing, and to whom it may be disclosed. There is a right to have the data communicated, and the source of the data. Any such request is to be made of the data controller, in writing, and with payment of a modest fee. There is a right to prevent processing likely to cause damage or distress.

[74]      Sections 16 to 26 set out the duties on a data controller. Broadly, personal data must not be processed unless the data controller is registered, and it is an offence to process data without being registered. A data controller’s duty is to comply with the data protection principles in relation to all personal data with respect to which he is the data controller (section 4(4)). There is an exemption for domestic premises. This does not apply to the defender’s property.

 

Whether There is Data Which the Defender Required to Control

[75]      The Act is expressed in terms of a large number of defined terms. I will not set these out at length, in the interests of brevity and focus, but I have had regard to these.

[76]      The defender does not dispute the central premise of this case, namely that if audio and video recordings of the pursuers’ personal property have been made, then they are capable, at least, of requiring regulation by the Act, and therefore observance by the data controller of the principles. The defender’s stance has not been to disprove the pursuer’s case, but rather to lead no evidence and to challenge the sufficiency of the pursuers’ evidence.

[77]      It is clear, on the evidence, that video and audio recordings of the pursuers and their family going about their daily activities outside and around their home were made by the defender’s equipment, and that these meet the definition of personal data which are being processed, all as defined in the Act. Whoever caused these to be recorded meets the definition of data controller, as they determined in what manner the recordings were processed, and the purpose. The CCTV and audio system were installed on the instructions of the defender and Mr Akram, as owners of the lower premises, and operated by one or both of them. The defender admits that she was the data controller from March 2015 onwards. The defender’s counsel challenged whether it can be shown she was a data controller between October 2013 and March 2015. In my view this has been proved, for the following reasons:

 

Identity of Data Controller

[78]      It is admitted that the defender has been the data controller since March 2015.

[79]      The equipment was installed in about October 2013. The defender maintains that there is no evidence about who the data controller was, and no evidence showing that it was the defender, prior to March 2015, or that she is vicariously liable for the actings of the manager, her husband.

[80]      The pursuer offers to prove that the defender was either the data controller throughout, or was vicariously liable for the actings of Mr Akram, if he was the data controller. The defender submits that there is no information upon which to decide vicarious liability, and relies on the absence of a plea relating to vicarious liability.

[81]      In my view the defender was, on the balance of probabilities, and on the uncontradicted evidence led at proof, the data controller in relation to all such recordings made and processed from October 2013 onwards. The reason is that the Act requirements are satisfied in relation to her directly.

[82]      The definition of data controller in the Act is a wide one, and means:

‘a person who (either alone or jointly or in common with other persons) determines the purpose for which and the manner in which any personal data are, or are to be, processed’.

 

[83]      That the defender knew of and approved of the equipment is clear from the reported correspondence with the ICO. Her own correspondence and admissions are not entirely consistent - while she admits that Mr Akram is the manager, in correspondence (5/21) she refers to ‘our business and our guests’ and her now becoming ‘fully involved’. Mr Akram admits that he was an employee. Whatever the analysis, it is clear that the defender was either in sole control or was in joint control. On the balance of probabilities, the evidence shows that the defender and Mr Akram were in an employer/employee relationship.  She, as owner of the business, has ultimate control of the processing, and even if she left daily management to her husband, she still ‘determined’ the manner of processing (by installation of the system, and continued operation) and the purpose (allegedly for security). She may have carried out such processing “alone”, or alternatively “jointly” in co-operation with her husband/employee. She may have done so “in common” with him. All of these possibilities would meet the Act definition.  The other possibility, that she had no control, and no involvement in decision making, is not credible in the light of the robust, eloquent and informed general nature of the correspondence she exchanged with the pursuers, and I reject that possibility. I do not accept that she was not the data controller between October 2013 and March 2015. On the balance of probabilities, she was joint controller.

[84]      I may have accepted that the defender was vicariously liable for the actings of Mr Akram in the course of his employment as manager between October 2013 and March 2015. I consider, however, that counsel is correct in stating that this plea is not available to the pursuers, not having been the subject of a plea-in-law.  This challenge was flagged up in the defender’s Rule 22 note and has not been answered. It is not enough that this is mentioned as a matter of a few lines of averment on record. Moreover, it was not the subject of any submission at proof. I will therefore not discuss vicarious liability in detail. The pursuer’s case does not turn on this. The evidence shows that the defender was intimately and directly engaged in approving the ongoing surveillance, and was therefore a data controller.

[85]      In my view, because the defender’s involvement satisfies the definition of data controller under the Act, she was the data controller from October 2013 onwards. She remains so to this date.

 

Whether the Defender was in Breach of her Duties under the Act

[86]      The pursuers claim that the defender has been data controller since October 2013, and has processed personal data, namely audio and video footage of the pursuers’ property and their family activities thereon, in breach of her duty (section 4(4) of the Act) of two principles (see Schedule 1 of the Act), namely: the first principle (‘personal data shall be processed lawfully and fairly…’) and the third principle (‘personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed’).  In submission, the pursuer also relied on the fifth principle (‘personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or purposes’).

[87]      In my view, on the basis of the foregoing facts, the defender was clearly in breach of her duty as data controller from October 2013 onwards.

 

Breach of the First Principle

[88]      The first principle is that:

“Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-

At least one of the conditions in Schedule 2 is met…”

 

[89]      Part II of Schedule 1 sets out, at paragraphs 1 and 2:

‘1(1)  In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purposes for which they are to be processed.’

[…]

2(1) Subject to paragraph 3, for the purposes of the first principle personal data are not to be treated as processed fairly unless-

(a)        in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3), and

(b)        in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).’

 

[90]      The relevant time is the time when the data controller first processes the data. The information referred to is the identity of the controller (or of any nominated representative), the purpose or purposes for which the data are intended to be processed, and any further information which is “necessary”, having regard to the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.

[91]      This principle has clearly, in my view, been breached in a number of ways.

[92]      The defender has failed to give the necessary information (Schedule 1, Part II, paragraph 2(3)) which it would have been practical to give. The correspondence referred to above shows a history of refusal to provide information of all types, but most basically who the data controller was (at least until March 2015), what data was being processed, and why. No notices were posted (so visitors would be unaware of surveillance) and no information was given to the residents. The defender has failed to give information as to the purpose or purposes for which the data are intended to be processed. No sufficient reason has been given, far less a justification. There has been an attempt in correspondence to justify coverage to monitor incidents between the parties, but that makes little sense in relation to surveillance of, for example, the pursuer’s garden area, to which the defender had no access. The possibility of a confrontation between the parties cannot justify surveillance when Mr Akram was not there, for example overnight or outside working hours, or even when he was inside the guest house. The surveillance was extravagant, highly intrusive, and not limited in any way.

[93]      In my view, surveillance and recording of an individual’s personal residence is potentially so intrusive as to require the maximum possible amount of information, which is what is “necessary” for these purposes (paragraph 2(3)(d)). The defender has done the opposite, which was to refuse or to restrict information to the minimum. No attempt was made to warn the Woolleys, or to consult with them, prior to or during the surveillance. No warning notices have been posted and no information given about the extent of surveillance. The fact of surveillance by camera is self-evident, but the Woolleys have been left to their own efforts to work out how far that surveillance extends. No attempt was made to warn of audio surveillance. They have no information about who has access to the processed data, for how long it is kept or for what purpose. The Information Commissioner’s Office has published guidance (‘The Guide to Data Protection’ December 2010 and October 2016) as to notification, which enjoins the data controller to ‘put yourself in the position of the people you are collecting information about’ and consider ‘is there anything they would find deceptive, misleading, unexpected or objectionable’. Here, there was simply silence, and the defender made not the slightest effort to notify or inform until this information was demanded, and even then the information was as sparse as the defender could make it.

[94]      In a related production (‘In the picture: a data protection code of practice for surveillance cameras and personal information’ 2015) the ICO notes:

‘Surveillance systems should not normally be used to record conversations between members of the public as this is highly intrusive and unlikely to be justified…you should turn this off or disable it in some other way, unless you can clearly justify its use with robust supporting evidence.’

 

[95]      It is not difficult to see that this is correct advice, and that the defender set up and runs a system which is extremely intrusive.  

[96]      There are therefore multiple breaches of paragraph 2(1) of Schedule 1, Part II. It follows that ‘the personal data are not to be treated as processed fairly’. The specified information (sub-paragraph 3) was not given. No sufficient information was given to allow the notice to be ‘fair’ for those purposes. It follows that the defender was in breach of the First Principle.

[97]      Further, none of the conditions in Schedule 2 have been met. The data subjects did not consent (condition 1). The processing was not necessary in terms of conditions 2 (contractual), 3 (legal obligation), 4 (necessary to protect the subject’s vital interests) or 5 (state functions). Only condition 6 could be relevant here, but it is not met. None of this surveillance was ‘necessary for the purposes of legitimate interests pursued by the data controller’. As I have set out above, the defender’s interests have never been satisfactorily explained or justified. If there were a history of confrontation (about which I have heard no detailed evidence), it still does not justify surveillance of areas of the pursuers’ property to which Mr Akram has no legitimate access, and does not justify permanent recording, and does not justify such an extravagant level of recording. The defender has refused, possibly for understandable reasons, to give evidence and to seek to justify such an oppressive regime of surveillance of the pursuers’ property. There is no basis, either in evidence or in logic, to accept that the purposes were in any way necessary. Further, even if there were, the second part of condition 6 disallows such processing;

‘…where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interest of the data subject.’

 

[98]      The Woolleys’ fundamental right to fair enjoyment of their own property has been fundamentally infringed in an unwarranted manner. Condition 6 would therefore not apply in any event.

[99]      Accordingly, the first principle is infringed in this respect also.

 

Breach of the Third Principle

[100]    The third principle is:

‘Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.’

 

[101]    In my view this has clearly been breached. Under reference to the foregoing facts, which I will not rehearse, the regime of surveillance was extravagant, unjustified and highly visible. In my view, the coverage was evidently an effort to oppress. It goes far beyond anything which the defender has attempted to justify in her correspondence. The defender has led no evidence attempting to explain the surveillance. It is not clear what justification could exist for surveillance on this scale of intrusiveness.

[102]    The data which was processed was not relevant, to the extent that it covered the pursuers’ private property. That would include the rearmost CCTV footage. It would also include the front CCTV footage which is solely pointed at their property. It would also include the audio boxes to the rear.

[103]    In relation to the remaining CCTV and audio, that is ‘excessive’ in respect that no adequate justification for surveillance has been given. It follows that the third principle has been breached in relation to the whole data processing system.

 

Breach of the Fifth Principle

[104]    The fifth principle is:

‘Personal data processed for any purpose or purposes shall not be kept longer than is necessary for that purpose or those purposes.’

 

[105]    The only purpose claimed was for the recording of confrontations, of unspecified type, between the pursuers and Mr Akram. I do not know if there is any justification for that claim, as the defender did not give evidence. Even if this were true, for the sake of argument, it would be wholly within her knowledge, on a daily basis, whether there had been such a confrontation. There was therefore no logical requirement to keep footage beyond the end of any day. It could be deleted on a daily basis, without affecting the alleged purpose. It follows that data retention, even for five days, was excessive. The fifth principle was therefore breached, in that the retention period was not justified.

[106]    The pursuer also submitted, under reference to tribunal proceedings in England in Southampton City Council v ICO (19 February 2013, First-tier tribunal appeal) that a data retention policy should not be decided solely based on the recording capacity of the hardware. I agree. In the fifth principle, it is not enough to define “necessary” as being restricted by technical capacity. It is clear that the data controller must apply his or her mind to what is necessary or justified, and cannot simply let the machinery regulate the retention period. The defender’s reliance on the hard disk overwriting itself every five days simply shows an abrogation of her responsibility as data controller. The fifth principle is breached in this manner also, in that no assessment was made.

 

Effect of Breaches

[107]    It is difficult to conceive, apart from possibly internal monitoring of the pursuers’ home, how surveillance, and the subsequent processing of the recorded personal data, could be more intrusive than in the present case. The effect on the Woolleys has been profound and destructive. Such an effect should be obvious to anyone setting up a surveillance system. In the event that the obvious needs to be spelled out, it is available in the ICO published codes of practice for surveillance cameras and personal information, which have been issued since 2000.

[108]    The defender holds herself out as a self-employed owner of property and guest houses. The correspondence mentions that she has a professional background. It is inconceivable that the defender did not realise the effect that this surveillance, recording, silence on the extent or use of the recording and refusal to reveal any details, would have. I say nothing further.

[109]    Remedies for breach of the data protection requirements are set out at section 13 of the Act.

 

Remedy

[110]    Section 13(1) of the Act allows compensation for any damage suffered. It is not claimed here that any physical damage has been suffered.

[111]    Section 13(2) allows compensation for distress, but only if two conditions apply. Those conditions do not apply here. At first appearance, it would appear that the pursuers have no remedy in compensation.

[112]    It has now been settled, however, and parties agreed, that the pursuers do qualify for compensation if they have suffered distress only. The case of Google Inc v Vidal-Hall & Others [2015] EWCA Civ 311 established that section 13(2) could not be interpreted compatibly with article 23 of Directive 95/46/EC, and therefore required to be read as if it gave such a right to compensation for distress only.

 

Amount of Award

[113]    The Act does not give guidance as to levels of compensation. The pursuers have claimed sums which are calculated based on a nominal amount of £10 per day for each of them, multiplied by the number of days which such data processing has taken place in breach of the Act (namely since the equipment was installed in October 2013 to the raising of the action), under subtraction of one month per year to allow for when they were likely to be absent from the property, for example on holiday.

[114]    This method of calculation is not held out as based on anything but pragmatism. No authority exists for compensation in these circumstances. Such case law as exists relates to individual, one-off errors, such as loss of a file, and is not similar. It is necessary for the pursuer to formulate a claim, however little guidance there may be, and I cannot say that the sum of £10 per day per head is an unreasonable one. Having regard to the evidence of the effect of long-term surveillance and resulting stress, I accept that this is a reasonable, and probably moderate, basis of claim and that the methodology is logical. This aspect would benefit from authoritative decision.

[115]    Counsel adopted a neutral position, as he was equally hampered by the lack of authoritative guidance. He did not seek to dispute this method of quantification, or the sums sought.

[116]    I have no doubt that an award of compensation to each of the pursuers is merited. They have suffered a relatively extreme breach of the Act. The effect on their daily lives has been long-running and debilitating. There is no reason to distinguish between them, as their experience has been a joint one and the distress of the one is likely to affect the other.

[117]    I will award the sums sought. These are stated at 912 days, approximately two and a half years, at £10 per day, less four weeks a year for their absence. I do not comment on the correctness of this approach, simply that it appears stateable and logical. The sums sought are £8,634 each. Interest is sought at half the judicial rate from date of decree only. I will award each of them such a sum. Parties did not agree the position on expenses. I will therefore invite them to do so, failing which a hearing on expenses can be appointed. Parties should contact the court to arrange a hearing if this remains necessary.