Kirstie Goulder

+44 (0)1733 887682 kgoulder@greenwoodsgrm.co.uk

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Lucas Atkin

+44 (0)20 3691 2074 ljatkin@greenwoodsgrm.co.uk

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“People in glass houses…” – the long-awaited Tate Modern Privacy Case Judgment

Property / 25 February 2020

Earlier this month, the High Court dismissed an invasion-of-privacy case brought against the Tate Modern by neighbouring owners of £4m flats.

The owners of four luxury apartments in the Neo Bankside development of the City’s Southbank claimed the recently constructed extension to the Tate Modern caused “relentless” invasion of their privacy and have been fighting their corner since the viewing platform opened in 2016.

The viewing platform is one of the Tate Modern’s most popular attractions, offering 360° panoramic views of London, including views into these luxury apartments boasting ceiling to floor glass windows. There were complaints of “constant surveillance” with visitors on the viewing platform reportedly endlessly peering, waving, taking photos and uploading them to social media platforms. The neighbours claimed this intrusion breached their rights ‘to private and family life’ under Article 8 of the European Convention of Human Rights and caused a legal nuisance.

Nuisance cases historically include noise complaints from neighbouring property which affects an owner’s enjoyment of its property. Whilst the law currently protects a specific right to receive daylight to windows in a building, the same cannot be said for a right to a view from those windows nor does it prevent overlooking of the windows by neighbouring buildings.

The key issues

Mr Justice Mann had to decide two key issues:

1. Whether the Tate Modern was a public body, and therefore whether the question of the Human Rights Act applied? Although he determined that the Tate displays some of the factors which are relevant to the exercise of public functions, he stated that these activities were not governmental. He also held that the viewing gallery was not a function of a public nature. The neighbours’ direct privacy claim under the Human Rights Act was therefore dismissed.

2. Whether the law of nuisance could apply to an invasion of privacy, and whether it has been established in this case? In a ground-breaking decision, Mr Justice Mann held that the common law of nuisance could be extended under the direction of the statute and concluded that the law of nuisance is capable, in the ‘appropriate case’, of operating to protect the privacy of a home as against another landowner. However, he did not deem this to be one such ‘appropriate case’ and therefore no actionable nuisance exists.

A surprising decision?
Given the estimates of 600,000 visitors to the viewing platform each year, many were shocked by this outcome. Mr Justice Mann decided that the flat owners had created their sensitivity to the inward gaze by living in flats with floor to ceiling windows and that remedial steps could be taken to protect against any invasion of privacy, such as solar blinds and net curtains.

The Judge imposed some conditions on the Tate to alleviate some of the flat owners’ concerns, including a significant reduction to the opening hours of the viewing platform, retaining a visible notice to the visitors asking them to respect neighbours’ privacy and for Tate’s security staff to prevent photos being taken of the flats in question.

Comment for property guardianship companies
Although not directly linked to the property guardianship sector, we think this is a very interesting read and is an important reminder of the sensitivities and potential legal issues relating to data privacy. You may recall our “GDPR Top Tips for Property Guardian Providers” article:  in which we identified some types of data you may collect as a property guardian company, including data during your vetting procedures, credit searches and inspection records (including photos and documents) to name a few.

We recently welcomed data privacy expert, Lucas Atkin, to the firm and have briefed him on the intricacies of running a property guardianship company based on our specialist knowledge and experience. If you need any advice about data privacy, GDPR generally or the content of your privacy notices, please contact us and we would be happy to help.

 

A word from our data privacy expert, Lucas Atkin

Property guardian companies should consider the associated data privacy risks. For example, do inspection photos and/or any surveillance cameras record incidental footage of individuals in situations where they have a reasonable expectation to privacy? As demonstrated in the Tate modern case, organisations are expected to implement measures which show that they have recognised and mitigated the risks of unintended invasion of privacy.

Consider risks related to social media: are photos taken from or inside your property which are subsequently published? Is there any risk that any vantage points or areas where photographs are commonly taken facilitate invasion of an individual’s privacy? It is worth noting digital photographs (stored on phones, tablets or digital cameras) holds a certain amount of metadata. In the wrong hands, this information can tell someone everything they need to know about where the photo was taken.

The ICO (the UK data privacy authority) may expect you, in such situations, to be able to demonstrate that you have taken documented steps to recognise and mitigate against risks to individuals’ privacy (for example, CCTV use policies or notices; or organisational photography/social media guidelines).

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