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Video Surveillance & CCTV

It is impossible for us to say what is and is not legal when it comes to CCTV and video, we do not have the legal knowledge and we can find no clear definitions and guidelines on the web. What is clear is the laws affecting these things seem to be evolving as the technology evolves, web cams, public surveillance, phone cams etc. are forcing the relevant authorities to write and rewrite the law with every new court challenge and it appears that if there is an issue regarding videoing and filming it is in the courts where rights and wrongs are tested.

If you are planning on installing CCTV the application of common sense would be well advised, i.e. do not set up a camera to film or record where a person could reasonably expect privacy, if your CCTV only films your property or the public space in front of you property there is probably not going to be much of a case to answer if your neighbour complains, if you have it set up to film or record their property or house expect them to be upset (you would be) and take steps to stop you. If you live in a block of units or flats it would probably be advisable to talk with the body corporate and or your lawyer about what you can and can't do. It would also be advisable (and polite) to place a clearly visible notice at the entrance to the property stating that CCTV is in use, this avoids somebody entering the property claiming they were not warned.

The following information is for NSW with some links for some other states at the bottom of the page. If readers have any relevant information on other states we would be interested to hear of it and you can contact us here.

Surveillance cameras operated by individuals are not covered by the Privacy Act 1988, but they may be covered by State or Territory law, and the police may be able to help you for very serious matters.

NSW

The following article is © State of New South Wales through the Department of Attorney General and Justice

My neighbour has set up a video camera that looks onto my property. Is this lawful?

There are currently no laws that specifically restrict the use of surveillance systems in residential settings. Where a home is also a “workplace”, you should look at the Workplace Surveillance Act. If voyeurism is involved see Division 15B of the Crimes Act1900 (see below).

It is possible that the installation of surveillance cameras that intrude on the privacy of neighbours is a planning issue that could be regulated under councils’ development control powers. However the Environmental Planning and Assessment Act does not clearly support such a position. We are not aware of any council that has attempted to deal with this issue through the use of its development control powers. You may however wish to contact your local council for further advice on this issue.

If video surveillance has reached a high level of intensity, you may be able to make a common law claim of nuisance on the basis of unreasonable interference with the enjoyment of your property. We are aware of one local case (Raciti v Hughes, unreported, NSW Supreme Court, 1995) where the Supreme Court granted an interim injunction to a neighbour to restrain the intrusive use of a video camera. However taking legal action can be an expensive and uncertain process. We would certainly not recommend that you begin such action without strong supporting legal advice.

If the installation of the cameras has taken place in the context of a wider dispute involving threatening behaviour, you may be able to have the issue addressed in the context of an application for an apprehended violence order. If such an application is made, the magistrate has the power to make ancillary orders to defuse the likelihood of violence. This could include for example an order to remove a surveillance camera.

We also note that Crimes Act1900 now has a separate division "Voyeurism and related offences" (Division 15B) which may be relevant if voyeurism and the like is involved. You should obtain legal advice on whether this Division may apply to actions of your neighbours.

Privacy NSW has the power to investigate and seek to conciliate a complaint about conduct that interferes with an individual’s privacy generally. However if the person complained about refuses to compromise, the action we can take is limited.

Alternatively you could try to have the matter resolved by way of mediation through your local Community Justice Centre. For details of this process, please contact the Community Justice Centres in your state.

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There is some interesting information about audio recording contained in this excerpt from the NSW Attorney General which was obtained by the local newspaper Clarence valley Review when they inquired about council recording video and audio in the council chamber foyer.

 

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