Do video cameras compromise privacy?

2018 | roadmap

In an increasingly digitalised world, privacy is playing an ever more important role in property law. Thanks to security cameras, drones and other new technologies, each of us may be recorded or photographed without our knowledge. The jurisprudence has therefore had to address the question of whether installing video cameras or photographing neighbours or tenants in a residential complex infringes on their privacy.

Trouble in the neighbourhood
It can be hard sometimes to get along with your neighbours in a residential complex or apartment building. There is a risk that other inhabitants will be recorded by, for example, installed video cameras. In a recent decision, the Austrian Supreme Court dealt with the question of whether landlords have the right to terminate lease agreements with tenants who have recorded or photographed others without their consent.

In this case, a tenant installed a video camera on his carport, which also recorded other inhabitants of the house passing by. The tenant also took photos of other tenants while they were mowing the lawn or sunbathing. The Supreme Court concluded that this constituted a significant disturbance of peaceful co-existence and that the tenant was therefore guilty of seriously and continuously intervening in the inhabitants' personality rights. Harmonious co-habitation between the tenant and other inhabitants of the complex could no longer be expected. The landlord was therefore able to terminate the lease agreement for good cause due to the tenant's intolerable behaviour and the tenant had to move out.

Video cameras are commonly installed in housing and garage areas with the aim of protecting property. The established jurisprudence also allows the installation of video cameras as long as they are only in one's own living area and do not give neighbours the impression that they are being monitored, eg due to the position of the camera. The Supreme Court makes no distinction between real and mock video cameras, which are not recognisable as such. Thus, if a neighbour is subject to constant monitoring pressure, this shall be considered serious interference with his privacy. The neighbour therefore has the right to demand the removal of such cameras.

The use of drones remains a problematic grey area in the jurisprudence. Among the difficult questions requiring clarification are:

  • who is controlling the drone?
  • how do drones infringe privacy?

As there are no clear-cut answers, justified claims are not usually pursued. However, if a drone flies over a private property and the identity of the person controlling the drone is known, the owner of the property can defend himself against the infringement of his privacy by filing a trespassing claim under Sec 339 of the Austrian Civil Code. This is because, according to Sec 297 of the Austrian Civil Code, the vertical air space above a property is usually linked to the property itself.

Author: Natalie Wolfschwenger

Further reading
There's no place like home until the neighbour interferes
Legal trespassing
Do our smart devices have the right to remain silent?