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Surveillance cameras and the advancement of the law on private nuisance

Cowell Clarke successfully relied upon the law of nuisance to obtain an order for a mandatory injunction to have an invasive surveillance camera (monitoring our client’s land) removed from a neighbouring property.

Cowell Clarke acted for the Plaintiff in actions which were brought in the District Court and Environmental, Resources and Development Court of South Australia and heard concurrently at trial.

One of the claims brought in the District Court action by our client was based upon a complaint that a Pan-Tilt-Zoom Camera (“PTZ Camera”) installed by the Defendants on their property constituted an actionable nuisance on the basis that the PTZ Camera had a commanding view of the Plaintiff’s property and had the ability to zoom, record and be operated manually and remotely.

Many will be aware that there is no “right to privacy” recognised by the laws of Australia. There is also a commonly held belief among the profession that watching someone’s land or taking photos of someone’s land is not an actionable nuisance.  This case tested that proposition.

The Plaintiff argued that the character, nature and position of the PTZ Camera constituted an actionable nuisance in the circumstances of the case.

In a judgment delivered on 23 August 2017, Her Honour Judge McIntyre considered and expanded on comments of the High Court in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 and held that the Defendants’ PTZ Camera was an actionable nuisance due to:

  • the degree of the Plaintiff’s property covered by the PTZ Camera;
  • the evidence showing that the purpose of the PTZ Camera was to watch the Plaintiff, not for “security” reasons;
  • the ability for the PTZ Camera to be manually operated; and
  • the ability for the PTZ Camera to record and for the footage to be viewed remotely.

Judge McIntyre concluded that the PTZ Camera constituted a gross invasion of privacy that would be “highly offensive to a reasonable person of ordinary sensibilities” and that the Defendants’ conduct and use of the PTZ Camera amounted to “watching and besetting”, such that the PTZ Camera represented a substantial interference with our client’s use and enjoyment of his property.

In this regard, whilst the operational capacity of the PTZ Camera was a clear factor that influenced the court’s finding of a nuisance, Her Honour indicated that the smaller fixed security cameras installed by the Defendants may potentially have constituted a nuisance in the circumstances.

The confirmation that the law of nuisance can, in some circumstances, extend to the use of cameras for deliberate surveillance of neighbours is an important advancement of the law given the increasing density of Australian neighbourhoods and the prevalence of mobile phones and other devices with video recording capabilities (such as drones).

If you have any questions concerning this area of the law, please contact Jamie Watts or Andrew Bullock.

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