Pixelated video surveillance of a neighbouring property not permitted

Abstract

1. Even a video surveillance camera that is not in operation can interfere with the privacy of a supposedly monitored neighbour if there is a concrete fear that the camera could be connected and put into operation at any time and unnoticed.

2. If neighbours have the justified fear that the location or orientation of a video camera or a video camera dummy (not recognizable as such), for example, when they are located in the surveillance area and are covered by the images, an invasion of privacy is to be affirmed in principle.

3. The pixelation of the neighbouring property recorded by the video surveillance camera is not visible to an impartial, objective observer from the outside. There is therefore the fear that the monitoring can be extended to the neighbouring property unnoticed and at any time by removing the pixelation. For this reason, the privacy of the neighbour is also affected in case of partial pixelation due to the existing monitoring pressure.

Facts of the case

The parties are neighbours and have been involved in disputes for years. The defendant has had a specialist install a total of four video surveillance cameras on his house façade. Some of the cameras are also aligned with the claimant's garden. However, the parts of the picture that concern neighbouring properties are pixelated. The client knows that the parts of the video recordings concerning him will be made unrecognisable. The defendant himself can change neither the camera settings nor the area made visible by the cameras, as he does not have the necessary administrator code. Rather, he can only look at the - partly pixelated - photographs. In the access area to the defendant's house there is a sign with the inscription "This property is video-monitored".

The claimant initiated a procedure with the data protection authority because of the video cameras. The latter discontinued the proceedings against the defendant, as monitoring of its own private property was permissible with restrictions.

With his lawsuit, the client seeks an injunction against the surveillance of his house and his garden area or giving the impression of such an activity and to remove the video cameras or change their angle of view.

From the explanatory statement:

(...) The right to the protection of privacy particularly protects against intrusion into the private sphere of a person. Secret images in the private area and continuous unwanted surveillance represent a violation of the secrecy sphere (8 Ob 108/05y; 6 Ob 6/06k; 6 Ob 38/13a; 6 Ob 231/16p).

Even if the surveillance camera was not connected to an operating system and had not been in operation so far, the Austrian Supreme Court's case law affirms the claimant's neighbour's claim for protection against invasions of his privacy. This claim can only be efficiently enforced if the camera is no longer directed at the premises of the claimant, irrespective of whether it is in operation or not, because the claimant has no possibility of control in this respect. Even if the camera is currently not ready for use, there is no mere abstract fear of possible misuse, which in itself would not justify the request, if the circumstances of the case give rise to the concrete fear that the camera could be connected and put into operation at any time and unnoticed by the client's neighbour. The danger of intervention is therefore to be affirmed if there is a concrete fear that observation with the camera could begin (7 Ob 89/97g; 6 Ob 6/06k; 6 Ob 231/16p).

(...) Neighbours/house occupants must not get the impression of being monitored by systematic, identifying surveillance measures. If, for example, the location or orientation of a video camera or a video camera dummy (not recognizable as such) gives them the justified fear that they are in the surveillance area and are covered by the recordings or videos, an interference of their private sphere must be affirmed in principle (8 Ob 47/14s; 8 Ob 125/11g). It is therefore not important whether the monitoring is actually recorded, because it already represents a serious impairment of the private sphere (secret sphere), if a person concerned feels exposed by the kind of the mounting and the external appearance to a constant monitoring pressure (5 Ob 69/13b).

Whether there is a justified fear of being monitored for an impartial, objective observer depends on the local conditions and the location and orientation of the (supposed) monitoring system (...).

(...) The pixelation of parts of the area outside the defendant's premises captured by the video cameras only appears on the screen in the defendant's living room and is therefore not visible to an impartial, objective observer from outside.

Under these circumstances, the client is to be granted the justified concrete fear that he is in the surveillance area and is covered by the recordings or records.

(...) In view of the given situation, which indicates an escalating neighbourhood dispute due to the mutual accusations and the resulting official and judicial disputes, a concrete danger of intervention must also be affirmed. There is the - not merely abstract - fear that the recording could be extended at any time and unnoticed by the claimant's neighbour to the covered areas of the claimant's plot by removing the pixelation. For this reason, his privacy is compromised by existing surveillance pressure.

Gloss

This decision is to some extent a logical one but at the same time a controversial continuation of the previous article on video surveillance cameras and camera dummies. The lower courts dismissed the action. The main reason for this was on the one hand the actual knowledge of the claimant that the parts of the picture concerning his property are pixelated as well as the lack of intention and possibility of the defendant himself to deactivate the pixelation. Therefore, the first two instances came to the conclusion that, objectively speaking, the claimant was not exposed to any monitoring pressure.

The Supreme Court, on the other hand, assumes that only the perspective of an impartial and objective observer is relevant for the assessment of the monitoring pressure. It is based on its earlier case law regarding video camera dummies (OGH 8 Ob 47/14s). The external third party can only recognize the external appearance, the location and the orientation of the cameras but not the pixelation of individual image areas within the surveillance system. Furthermore, in the view of the Supreme Court, there is a concrete danger that the pixelation could be removed due to the escalating neighbouring disputes in the case described. Therefore, there is an invasion of the privacy of the claimant. The risk of intervention is therefore always to be affirmed if the subjective view of the person concerned is the concrete fear that observation with the camera could occur (OGH 6 Ob 231/16p).

Thus, the Austrian Supreme Court uses both objective-abstract and subjective-concrete elements to assess the monitoring pressure. On the one hand, the Supreme Court depends exclusively on the impression of an objective observer when assessing the monitoring pressure. The subjective knowledge of the neighbour of the pixelation and also the (determined by the first instance court) not intended cancellation of the same are completely irrelevant. On the other hand, the Supreme Court also uses the escalating neighbourhood dispute - and thus a subjective element according to which the neighbour concerned must fear surveillance - to justify the risk of intervention that is not merely abstract. This combination of objective and subjective criteria with the simultaneous exclusion of certain subjective elements (specifically the actual knowledge of the neighbour of the pixelation and the unintentional removal of the anonymity) is not entirely convincing. From the explanatory statement of the decision, it is also not clear why the Supreme Court did not consider these two subjective points in the overall assessment, while the smouldering dispute of the parties was used as the decisive factor for the concrete danger of intervention.

In the light of the previous case law, it would be obvious to use all subjective or merely objective factors in assessing the concrete risk of intervention and the monitoring fear of the neighbour concerned.