Do your neighbour's security cameras make you uncomfortable? Here's what you can do (2024)

Do you ever get the feeling you're being watched?

Over recent years, countless private security cameras have appeared in our neighbourhoods, as surveillance tech has become cheaper, better and much more easily accessible.

But what one person may consider a necessary security measure, someone across the fence could view as an intrusion of their privacy.

So, what are the legal issues with cameras pointed at neighbours?

Are neighbours protected by privacy laws?

Australians might think they're protected by a raft of privacy laws. But Barbara McDonald, a professor emeritus at the University of Sydney Law School, says this isn't the case.

"There is no general right to privacy in Australian law or any right to sue people for invasions of privacy," she tells ABC RN's Law Report.

Professor McDonald headed up the Australian Law Reform Commission's inquiry into Serious Invasions of Privacy in the Digital Era in 2014.

"There is a patchwork of common law and legislation at federal and state levels. It provides some protection but [there are] lots of gaps," she says.

Take photography, for example.

"Strictly speaking, whatever you can see, you can photograph. There is no law against taking a photograph. Unless, of course, it's for some sort of illicit purpose," Professor McDonald says.

That's why, for example, the paparazzi can get away with snapping celebrities.

Are there any laws to protect me from surveillance?

When it comes to surveillance devices, people now have access to video, sound, night vision and infrared, and the laws are spotty across Australia.

In each state and territory, there are different definitions of what a surveillance device is, where you can use one, and when using one amounts to a crime.

But even if your neighbour's camera is not technically illegal, you might still have a course of action with the common law of nuisance.

"Keeping a neighbour under surveillance can amount to a private nuisance — but it has to restrict their use and enjoyment of [the other neighbour's] land," Professor McDonald says.

Has neighbour surveillance ever made it to court?

In NSW in 1995, there was a landmark case, Raciti v Hughes.

Every time the claimants went into the backyard, their neighbour's camera and lights would come on automatically and film their activities, which they believed interfered with the enjoyment of their land.

Justice Young, who decided that case, has become somewhat legally famous with the line:

"A deliberate attempt to snoop on the privacy of a neighbour, and to record that on videotape, is an actionable nuisance."

That was applied in another NSW case in 2022, when a neighbour set up 17 cameras along a driveway which the claimants were using.

They even included a sign saying: "Smile, you're being recorded."

"The defendant and his wife admitted to spending hours and hours reviewing the footage, for some reason. And in this case, again, the Supreme Court of NSW followed that older case of Raciti v Hughes and held that an action of nuisance was made out," Professor McDonald explains.

What have the courts said about PTZ cameras?

PTZ (pan tilt zoom) video cameras are domed cameras that can follow people by — as the name suggests — panning, tilting and zooming.

And they've ended up in court several times.

One of the first instances was Szann v Council of the City of Sydney in 2012.

The claimants sought permission to install PTZ cameras, but the council and neighbours objected.

The court observed that the presence of domed cameras high on the rear elevation was "a menacing panoptic mechanism positioned to give the neighbours the impression of being constantly observed in their own private rear courtyard".

And this impacted the use and enjoyment of other properties.

Then there was the South Australian case of Shahin v Raedel.

A dispute between the neighbours started in 2009, when the Raedels built a retaining wall. That dispute was then expanded into a battle over surveillance. First, Mr Shahin installed cameras, then Mr Raedel responded with his own cameras.

Continuing tit-for-tat led Mr Raedel to install a more powerful PTZ camera, which scanned around the two properties on a three-minute cycle, looking at the neighbour's property for more than half the time.

"[The judge said] this was a gross invasion of [the] privacy of the claimants. It amounted to an old crime called watching and besetting, and it was held that the action of nuisance was made out again," Professor McDonald explains.

But the judge also said PTZ cameras aren't always inappropriate in a suburban setting.

"What was important was the manner in which they had chosen to install and use it. There wasn't a blanket disapproval of PTZ cameras in all circ*mstances," Professor McDonald says.

What about cameras looking at public areas?

It's a different story when cameras are pointed at the street or other public areas.

"Generally speaking, if somebody has a camera [looking] onto a public street for security purposes, or to capture unpleasant behaviour … there wouldn't be an objection," Professor McDonald says.

There may also be body corporate by-laws in strata blocks about the use of cameras in recording common property.

"But in many cases, they will be there for security," Professor McDonald says.

What about recording sound?

Closed circuit cameras usually only capture an image. But the law has always taken a much tougher line on sound — like listening in on or recording a conversation.

The starting point here is it's generally illegal to record a private conversation where you are not a party. And under federal telecommunication laws, it is generally illegal to record a phone call unless all parties consent.

If you are a party to the conversation, then the law varies across jurisdictions.

In NSW, for example, "people need to be aware that they cannot record a private conversation … even where they're a party to the conversation", Professor McDonald says.

"Although there are some exceptions and defences, for example, where they're protecting their own interests."

However, in Victoria, you can record a private conversation to which you are a party without the consent of the other.

"That's a very significant difference between the law of two states, and I have to say it's very difficult to get consensus on what the law should be on this point."

What can I do if there's a camera pointed at my house?

Professor McDonald says the first — and hopefully last — step is to talk to your neighbours.

"Politely request that they move the camera or change its direction in a permanent way," she says.

"And I would always follow that up in writing with a note, of which you've made a copy, or an email. So you have a record of your written request, which then makes it more unreasonable if they don't act reasonably in response."

Then, if nothing happens?

"Talk to your council. They may be able to help, depending on local government regulations there," Professor McDonald says. Or "if you think there might be criminal conduct, then you can speak to the police".

"Obviously, you want to be able to resolve these sorts of disputes amicably and without expense. So, perhaps seek out a mediation service, [from a] community legal centre, or something like that."

Then there's a "very potentially expensive last resort".

"You might want to head off to court and seek an injunction."

If you're the one wanting to install a camera, Professor McDonald says "it's really important to check your local legislation on this as to what devices are unlawful and how they can be used lawfully and unlawfully".

Also, check whether your device is visible to your neighbours and could cause discomfort.

And if you're not sure — ask them.

The information provided is general in nature. For information on your individual circ*mstances, seek legal advice.

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