Big Brother’S Footling Brother? The Compass Of The ‘Household Exception’ To Eu Information Protection Law

Professor Lorna Woods, co-author Steiner together with Woods EU Law

Introduction

In the illustration of Ryneš, the Czech Supreme Administrative Court, Nejvyšší správní soud, referred a interrogation on the pregnant of the ‘household activity’ exception nether the European Union Data Protection Directive to the Court of Justice.  Central to the interrogation was the fact that the processing was yesteryear a CCTV photographic telly camera which was non restricted to the CCTV operator’s ain describe of piece of work solid but covered likewise the populace footpath exterior it together with the describe of piece of work solid opposite, when the ‘household exception’ refers to information processed ‘exclusively’ for personal together with household purposes.  This is an expanse inward which fellow member States’ practices diverge.  With the exception of Lindqvist, the Court has non dealt alongside the atmospheric condition of applicability for the household exception.  Since then, the European Union Charter of Fundamental Rights – which recognises non only the correct to private life but likewise the correct to information protection – has acquired legal forcefulness yesteryear virtue of the Treaty of Lisbon. The Opinion of the Advocate General was handed downward today, later than originally scheduled.

Facts

The illustration arose from the fact that Mr Ryneš installed a CCTV photographic telly camera on the corner of his describe of piece of work solid which overlooked non only his front end door, but likewise the populace footpath together with the reverse house.  His aim was to protect his household unit of measurement together with his property, every bit at that topographic point had been about previous vandalism to his property.  Shortly after the installation of the CCTV system, the windows of the describe of piece of work solid were broken i time again.  The CCTV footage was used to position 2 individuals, i of whom questioned whether the work of the CCTV scheme was permissible nether the Czech information protection law (implementing the directive). 

Question Referred

Mr Ryneš argued that the so-called ‘household exception’ inward Article 3(2) of the Data Protection Directive applied.  It states:

2. This Directive shall non apply to the processing of personal data:

- inward the course of report of an action which falls exterior the range of Community law, such every bit those provided for yesteryear Titles V together with VI of the Treaty on European Union together with inward whatsoever illustration to processing operations concerning populace security, defence, State safety (including the economical well-being of the State when the processing functioning relates to State safety matters) together with the activities of the State inward areas of criminal law,
- yesteryear a natural someone inward the course of report of a purely personal or household activity.

The Court referred the next question:-

Can the functioning of a photographic telly camera scheme installed on a household unit of measurement abode for the purposes of the protection of the property, wellness together with life of the owners of the abode endure classified every bit the processing of personal information ‘by a natural someone inward the course of report of a purely personal or household activity’ inside the pregnant of Article 3(2) of Directive 95/46/EC, even though such a scheme monitors likewise a populace space?

Opinion of the Advocate General

The Advocate-General made a number of preliminary points, notably that the answer to the interrogation did non depend on whether the information was stored or erased, or whether the information was used or non used.  What seemed cardinal was the existence of surveillance via the CCTV system. The Advocate General noted this illustration concerned a fixed CCTV system, where the surveillance was constant. The Advocate General commented that he did non holler upwardly to become into the expanse of devices of a different character, such every bit mobile phones (AG[30]).

The Advocate-General likewise emphasised that the Charter applied together with that the range of the directive itself – or limitations on its plain of application - should endure determined inward the calorie-free of the correct to private life together with inward this the Advocate-General referred dorsum to principles highlighted inward Google Spain; specifically the bespeak to ensure the effectiveness of the directive, stating that the approach inward Google Spain (para 69) did non merely apply inward regards to populace government but inward the context of horizontal relations likewise (AG [28]), later returning to the bespeak to furnish a high marker of protection a piffling later inward the sentiment (AG [39],citing Digital Rights Ireland, the judgment on the invalidity of the information memory Directive).  

The Advocate-General distinguished betwixt the activities of the law (which autumn nether the root indent inward Article 3(2)) together with those of Mr Ryneš.  He was non acting every bit a fellow member of the law forcefulness but every bit a victim fifty-fifty though he did give the images to the police; the exception for policing thence did non apply to him. The Advocate-General argued that the range of the directive should non endure determined yesteryear the subjective views of interested parties but yesteryear objective factors and, every bit alongside all exceptions together with limitations, should endure interpreted narrowly - every bit illustrated yesteryear cases such every bit Satamedia together with Lindqvist.  

Returning to Lindqvist, inward which AG Tizzano had given the illustration of correspondence together with address mass of personal activity, the Advocate General hither suggested that the exception should endure limited to those activities which are apparently private together with confidential. In the catch of AG Jääskinen, this agency activities which are closely together with objectively connected to an individual’s private life together with create non significantly touching on the private life of others. Family life has a distinct link alongside the domestic environment, though is non limited to the household unit of measurement abode but could include a hotel room or a household unit of measurement automobile (AG [51]). This is to a greater extent than or less the same Blue Planet every bit protected yesteryear Art. vii of the EUCFR.  For the household exception to apply, whether inward abide by of private life or household unit of measurement life, at that topographic point is the additional status of exclusivity. The Advocate General concluded that the video surveillance of others could non endure considered solely ‘personal’, though it could inward regulation autumn inside the range of domestic activity. Crucially, however, the extension of the surveillance to populace infinite cannot endure considered solely domestic because of the demeanor upon on others, who may wishing to save their anonymity.  The underlying concern is the demeanor upon of living one’s life nether a constant dry soil of surveillance, every bit noted inward Digital Rights Ireland (AG [56]).

The Advocate General concluded that the household exception could non endure relied on.

Comment

This seems to endure about other inward the recent tendency of cases where the Court – or its Advocates General – has interpreted the Data Protection Directive so every bit to extend or back upwardly protection for the information subject.  This tin endure seen yesteryear the attending paid to the recent cases of Google Spain together with the repeated references to Digital Rights Ireland.  While at that topographic point was about reference to Lindqvist when determining the exceptional of Article 3(2), it played piffling role inward informing the full general direction of approach.  While Satamedia allowed a wide approach to the ‘journalistic exception’ inward Article nine of the Directive, which tin endure contrasted alongside the narrow approach here, the exception was of a different type – hither the trial of Article 3(2) is to receive got the information exterior the plain of the directive altogether. Further, Article nine brings into play the countervailing involvement inward liberty of expression. No such involvement comes into play to extend private life, or to equate vigilantism alongside law forces (see likewise Lindqvist on this).

 

Influenza A virus subtype H5N1 exceptional theme is that of the demeanor upon of constant surveillance on individuals together with on society, i time again next on from recent cases.  In this the European Union judiciary seems inward describe alongside ECHR illustration law. Though the Advocate-General discounted Peck (which concerned re-use of safety footage from a local council), at that topographic point is an existing describe of law on dry soil surveillance: for illustration Liberty v. U.K. and the pending illustration of Big Brother Watch v. UK (though admittedly at that topographic point receive got been critics almost the marker of consistency of protection – run into e.g. Uzun v. Germany concerning GPS tracking).  The Advocate-General specifically excluded the possibility of discussing other surveillance devices such every bit mobile phones on the footing that they receive got different characteristics. This seems similar an effort to sidestep arguing as, from the reasoning, the same issues almost surveillance together with the demeanor upon on individuals could arise.  Admittedly, mobile phones tend towards private instances of use, which may endure to a greater extent than probable to autumn inside i limb or other of the household exception. 

There are novel devices, such every bit Google Glass, which let for continuous monitoring (until the battery needs recharging at approx. 45 minutes according to Google), without it beingness clear whether or non such monitoring is taking place.  This is a important departure from work of a cellphone for filming, despite Google’s suggestions that Google Glass is no different from a cellphone (which could inward whatsoever trial autumn exterior the household exception itself).  If the Court follows the Advocate General, this adds a gloss to the advice given yesteryear the U.K. Information Commissioner (ICO) after Google drinking glass went on sale here. The ICO weblog contains the next statement:

If y'all are using a wearable engineering scientific discipline for your ain work so y'all are unlikely to endure breaching the Act. This is because the Act includes an exemption for the collection of personal information for domestic purposes. But if y'all were to i solar daytime determine that you’d similar to start using this information for other purposes exterior of your personal use, for illustration to back upwardly a local create or to start a business, so this exemption would no longer apply.

This is non the illustration for organisations, whose work of wearable engineering scientific discipline to physical care for personal information volition almost ever endure covered the Act….

The way this advice is phrased, it is capable of beingness read every bit suggesting that ‘personal use’ is non-business use, whereas on the catch of the Advocate-General it seems probable to endure narrower than that together with thence could trigger information protection procedures.  Data Protection Commissioners receive got raised concerns almost Google Glass together with compliance alongside local laws. Perhaps the ECJ volition receive got to a greater extent than luck inward attracting Google’s attending – though the existent burden together with risk of penalties would seem to autumn on users.

Barnard & Peers: chapter 9

Share this post