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Neighbourhood watch is invasion of privacy, court rules in clash over CCTV

 CCTV and solar powered security installation. [File, Standard]

Your neighbor has a right to sue you for failing to consult him or her before installing a closed-circuit television (CCTV) camera at your gate, wall, or house for security purposes.

A legal dispute between two neighbours over a closed-circuit television (CCTV) camera has set a precedent, and people who believe they are being spied on can now ask for the cameras to be taken down and receive compensation for breach of privacy.

Four years ago, Hellen Maeda installed CCTV cameras at her house. But her neighbour, Kennedy Orangi, was not happy and complained that she never told him about the cameras that were pointed at his property.

The two neighbours could not agree about the cameras, with Mr Orangi accusing Ms Maeda of spying on him and his family.

Maeda, however, told the court that she installed the cameras on August 19, 2019, to protect her family.

Court records show that Orangi and Maeda live next to each other. They also show that Orangi tried to get Maeda to move the cameras so they would not point at his property, but she did not cooperate and efforts to resolve the matter out of court hit a dead end.

Orangi then filed a lawsuit in the High Court where he told Justice Hedwig Ong’undi that Maeda was violating his privacy.

"There is a travesty of justice to be occasioned against the petitioner on the grounds that on or about March 10, 2022, the respondent, who is the petitioner’s neighbour, without consent and knowledge of the petitioner erected a CCTV camera and or spying device overlooking the petitioner’s property,” argued Lorraine Adhiambo, Orangi's lawyer.

The court heard that Orangi and his family had not been enjoying their private life out of fear that Maeda was spying on them.

“The invasion of privacy by the respondent is continuous and without legal or legitimate basis,” said Ms Adhiambo. "If the respondent is not stopped by this honourable court, the said CCTV camera and or spying device erected by the respondent continues to capture and have information on the private domestic affairs and image of the petitioner and his family member.”

Orangi told the court he felt unsafe knowing that his neighbour had vital information and images about him and his family. He said he built a barrier on the fence to block the camera, but she moved them higher.

Maeda, however, fought against the lawsuit. She said she did not know about the problem until the court case started. She denied having any prior discussions about the CCTV issue and explained that she installed the cameras because her home had been robbed.

The court heard that the CCTV cameras had helped the police figure out that the thieves entered her yard and broke into the house through Orangi's backyard.

After the robbery, Maeda said she went to Orangi’s house, and his wife showed her around the compound. They discovered that the thieves got in by jumping over the fence using a wooden chair.

She told the court that she had told Orangi’s wife about her plan to install the cameras.

Maeda also put a sign at her back gate letting people know that her house was under CCTV surveillance.

Justice Ong'udi heard that the houses were built in such a way that residents could see into each other's compounds.

Maeda claimed that the security cameras were installed at a 45-degree angle. She told Justice Ong’udi that she had invited Orangi to bring technicians to check them buthe did not accept her offer.

She said the issue was reported to the Kilimani Police Station, and that she found the court documents on her car's windshield in the parking lot.

Orangi called Manda Muswa as his technician while Maeda chose Moses Otieno. The technicians wrote a report together and gave it to Justice Ong’udi.

The two technicians confirmed that the camera has a fixed lens that covers a 45-degree angle. They also said the Amcrest brand camera, which has an 80-meter range, can be accessed by anyone who has an internet connection and a password.

When they visited the houses, the technicians said that the camera was only aimed at Maeda’s house. But they said its direction could be changed to face Orangi’s house using a special tool called an Allen key.

Orangi argued that installing CCTV cameras infringes on privacy rights, and surveillance is only allowed when the law says so.

He pointed out that under the data protection law, Maeda is considered a 'data controller' and the footage and monitoring from her CCTV are considered personal data under this law. Orangi argued that the camera takes away his control over his personal information, which is being accessed and recorded without his consent and a justiciable cause.

On the other hand, Maeda said that she has the right to protect her property. She argued that there was no proof that she was spying on Orangi and his family. Instead, she said the camera's view was moved because it was being blocked by overgrown plants.

After listening to both arguments, Justice Ong’udi concluded that Maeda had shown she did not install the cameras to spy on her neighbour. She also noted that the cameras were installed in 2019, not 2022.

The judge also noted that Maeda's theft claim was supported by a police report, Occurrence Book Number 41/28/06/2019.

"It has therefore not been proved by the petitioner that the installation was for ulterior motives,” the judge said, adding that evidence showed the cameras were pointed at Maeda's property.

Justice Ong'udi, however, said that although Maeda claimed she had informed Orangi’s wife about the installation, neither she nor Orangi called her to clarify the issue.

The judge said that Orangi’s wife would have assisted the court to determine whether there was consent or not.

The judge cited the technicians' report showing the CCTV system could be manipulated and accessed online, giving Orangi legitimate concerns about his privacy.

Justice Ong'udi was of the view that Maeda needed to first register with the data commissioner and prove that she had sought consent from her neighbour.

“There is no evidence to show that the respondent was registered as a data controller. It is apparent according to the Act that consent cannot be an assumption as deposed by the respondent. The respondent was under the obligation to receive express and unequivocal consent from the petitioner in view of his right to privacy. No such express consent is demonstrated,” said Justice Ong’udi.

The judge declared that Orangi’s privacy had been violated.

"While it is clear that the respondent had a legitimate reason to install the CCTV cameras, this ought to have been done in an orderly manner by consent or even through the management of the houses especially since the two parties are neighbours.”

The judge, however, declined to order Maeda to pay Orangi after finding that he did not prove that Maeda had used the recorded images and videos in a manner that caused him harm.

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