Privacy Law and Policy Reporter
In a recent issue of the Australian Law Journal, Mr Justice Young commented on a number of cases which demonstrated that the common law was meeting the challenge of developing a law of privacy (Young, 'Current Topics - the law of privacy', (1994) 68 ALJ 549) A recent decision by his Honour provides an interesting further development of these views.
In Raciti v Hughes the plaintiffs obtained an interim injunction against an adjoining occupant to prevent the defendant operation of video surveillance equipment which overlooked their back yard. The defendant had installed video equipment and lighting which was activated by movement or noise, so that when the plaintiff and her family went into their backyard the lights switched on and the video presumably began to record their movements. The plaintiffs complained that this caused them distress and interfered with their use of the yard.
The plaintiffs action was framed in nuisance. The defendant objected that the application disclosed no cause of action without offering evidence against the application.
In granting an interim injunction, Young J stated that the evidence was sufficient to establish a cause of action in nuisance giving grounds for an interlocutory injunction to restrain a nuisance, both on the way the lights were activated and the video equipment used. The two matters taken together made this even more the case.
The judgment identified a number of authorities concerned with training lights on a neighbouring property. Its treatment of the impact of the surveillance equipment was more cautious. His Honour noted that in the normal course of the law, photographing a person was not actionable. However, he was prepared to accept that there were some limits to the freedom to photograph, and, on analogy with cases dealing with telephone harassment, was prepared to find the use of video equipment to be sufficiently close to watching and besetting to constitute an actionable nuisance.
An interim injunction was granted for two weeks restraining the defendant from using the video equipment. The injunction was indefinitely extended on 3 November.
From a privacy perspective the case is significant as developing dicta of Griffiths J in the English High Court in Bernstein v Skyviews  1 QB 479, where the plaintiff, Lord Bernstein was unsuccessful in an action against an aerial photographer who photographed his country estate:
But if the circumstances were such that a plaintiff was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity, I am far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief (at 489).
Counsel for the plaintiffs referred to the case but Young J avoided any explicit endorsement of it.
Young J's judgment can also be seen to parallel a line of recent judgments which held that continuous or harassing phone calls at a person's place of residence constituted actionable nuisance. (See Almir v Nakir,  2 NSWLR 396; Motherwell v Motherwell, (1976) 73 DLR (3rd) 62; Khorasandjian v Bush  QB 727 (judgment of Dillon LJ at 735 with Rose LJ concurring, Peter Gibson J was not prepared to approve injunctive relief on grounds of private nuisance given the respondent's lack of formal occupancy); see also Piotrowicz, 'Private Rights and Private Nuisance in English Law: Khorasandjian v Bush,' (1993) 1 Torts Law Journal, 3, 207; Cooke, 'A Development in the Tort of Private Nuisance', (1994) 57 MLR 289.)
The caution expressed in Young J's judgment is understandable, given the limited facts available to him and his reluctance to foreclose on issues which might be raised at trial. It does mean, however, that the legal principle established by the judgment is not as forthright as people concerned at the spread of video surveillance might have hoped for.
The ability to obtain injunctive relief in a dispute between neighbours over the installation of video equipment hardly represents a realistic or cost effective remedy in the circumstances where disputes arise over the use of this rapidly proliferating technology. Cases such as this are likely to arise in the context of the kind of neighbourhood disputes which are notoriously difficult to resolve without costly legal action. The parties concerned are less likely than government or business organisations to modify their conduct on the basis of an ambivalent legal authority.
A more appropriate remedy might be provided through ensuring that external video equipment is recognised as a development under environmental and planning legislation. This would give neighbours a right to object where equipment infringes on the social amenity represented by their expectations of privacy and quiet enjoyment.
John Gaudin, Research Officer, NSW Privacy Committee. The views expressed here are personal ones.