The tension between security and privacy with the private use of security cameras

In today’s digital society, the private use of security cameras seems increasingly normal. For a relatively small amount of money one can purchase a security camera, which can provide a great sense of security. With the increased private use of cameras, the risk of a breach of the right to privacy also increased. Disputes between citizens concerning what the security cameras record or not record are becoming more and more common.

For example, we received a request for advice regarding the installation of security cameras on the neighbours’ business premises, with the objection that they were surveying a nearby residence with a balcony. The question we were asked is the following: to what extent is such an invasion of my privacy permitted? In this article, we will outline the legal rules  for the use of cameras. However, it may be that your municipality or business premises have other (additional) rules regarding allowing camera surveillance that you must take into account. 

Installing a security camera can be done for a variety of reasons: for surveillance and/or to secure property and premises. This is of course understandable and you are permitted to do so. The starting point according to the law is that you can only film your own property and (in principle) not the public road or other people and/or their property. Some overlap may be unavoidable or necessary, but in doing so you must consider the interests of others and violate their privacy as little as possible. The legal rules are as follows: 

  1. The person installing the camera surveillance must have a legitimate interest in doing so. 

This interest may lie, for example, in the protection of property and/or persons. However, the interest cannot be merely speculative: it must actually exist. For example, securing your property is no longer a speculative interest the moment there are many burglaries in your neighborhood or if there have been previous incidents.

  1. The installation of security cameras should not go beyond what is strictly necessary to achieve that legitimate interest.

This necessity actually comprises two questions: (1) whether the camera surveillance is reasonable given the purpose it is intended to achieve and (2) whether this purpose can also be achieved in an alternative and less harmful way. The first question relates to what exactly is being filmed (for example: the entire street) and whether this is necessary to achieve the goal (for example: securing your property). In this example, the camera surveillance is disproportionate to the invasion of the privacy of other residents. The second question sees to alternative options that may also be possible and just as appropriate for the intended goal, think of an internal security system for your business premises. If there is indeed another possibility available to protect yourself or your property, then the camera surveillance will be less likely to be permitted.

  1. The camera surveillance must be able to withstand an adequate balancing of interests.

In the event that there is a legitimate interest (criterion 1) and the camera surveillance is also necessary to realize that interest (criterion 2), then you will have to balance your interest in guaranteeing your privacy against the interest of the camera surveillance. This will involve looking at the (negative) consequences of the camera surveillance, what safeguards have been put in place by the person who placed the cameras to limit these consequences (for example, the way in which the images are secured or stored) and whether the interest of the surveillance outweighs these negative consequences. 

If you suspect that one of your neighbours is capturing more on the security cameras than is tolerated based on the above, we encourage you to take the following steps: 

The first step is to contact the concerned neighbour and find out what exactly is being recorded. If it turns out that there is indeed a disproportionate breach of your privacy, you can request that the camera surveillance be stopped. If the other party does not want to cooperate, it is advisable to contact the police. The police can, for example, consult a local police officer who will contact your neighbour. If the local policeman has seen the camera footage and observes that, for example, your home is being portrayed disproportionately, he will order your neighbour to remove the security cameras or to set them up in such a way that they no longer portray your home.

Should the options described above not lead to the desired result, you can file a complaint with the Authority for the Protection of Personal Data (hereinafter: AP). More information about the complaints procedure can be found here. In extreme cases, you can ask the court whether the cameras may be removed. If you start legal proceedings, you cannot ask the AP to rule on your complaint at the same time. We advise you to first make use of the possibilities discussed above. Legal procedures are both time-consuming and expensive and, moreover, can seriously (severely) disrupt the relationship with your neighbour.

Are you planning to install security cameras around your home? We then recommend you to read the step-by-step plan of the Authority for the Protection of Personal Data before you proceed with installation.

If, despite the information hereabove, you have any additional questions about what exactly this means for you and you are in need of legal advice tailored to your situation, please do not hesitate to contact us.

This article was written by Lois Elshof and Laurens de Korte. Lois and Laurens are both law students at the University of Amsterdam.