During arbitration proceedings brought before the Malta Arbitration Centre, a claim was lodged by aggrieved condomini who collectively claimed that a decision taken during an annual general meeting, whereby a request to have CCTV cameras installed in the common parts of a block of apartments was rejected. The condomini collectively claimed that this was an unreasonable and oppressive decision in terms of article 23 of the Condominium Act (Chapter 398 of the Laws of Malta) which seriously and negatively affected their private life and property, given that it inter alia left the common parts exposed to security risks and failed to provide adequate monitoring of the common parts against episodes of repeated vandalism.
In view of the above, the condomini collectively requested the tribunal to order and condemn the administrator of the block to install CCTV cameras in suitable areas of the common parts, and this within a time frame duly set out in the arbitration award.
In its award, the tribunal considered the definition of “unreasonable and oppressive” in terms of article 23 of the Act. It noted that, while the law is silent on the meaning of “unreasonable and oppressive”, not every inconvenience or disturbance should be able to impugn a decision of the condomini for being “unreasonable and oppressive”. What is necessary is that the measure approved by the decision of condomini is one that truly creates prejudice to a dissenting condominus and is disproportionate to the benefit that the other condomini may achieve by virtue of the same measure.
The tribunal noted that from a Civil Code perspective, the installation of CCTV cameras does not necessarily negatively impact the enjoyment of the use of co-owned property. This in fact was determined in the case “Anthony Scicluna vs Saviour sive Alvin Scicluna” (Court of Magistrates (Gozo) – 23 September 2022) where CCTV cameras surveilling a field co-owned by various individuals, was claimed to breach the co-owners’ privacy rights on the basis that each co-owner may easily become aware of when each individual co-owner entered the field in question, and what activities the same individual is carrying out in the same field. The Court of Magistrates held that the CCTV cameras did not cause any damage to the field co-owned by the individuals and in no way prevented the plaintiff from entering and accessing the field in question of which he had an undivided share. The Court held that the field could still be enjoyed to the same extent, measure and manner despite the installation of these CCTV cameras and accordingly, held that there was no valid reason for the removal of the same.
Notwithstanding the above, the tribunal considered the issue at hand from a data protection point of view. Article 4 of the General Data Protection Regulation (GDPR) defines “personal data” as “any information relating to an identified or identifiable natural person”. In the context of CCTV footage, if a person is identifiable from the CCTV footage, then these images can be regarded as personal data and the GDPR provisions would therefore apply. However, article 2(2)(c) of the GDPR provides for a “household exemption”. The so-called “household exemption” dictates that where the processing of personal data is carried out “by a natural person in the course of a purely personal or household activity” then the GDPR provisions do not apply.
The tribunal noted that although the “household exemption” would apply in the context of CCTV cameras installed in the common parts of a block of apartments, the exemption must be narrowly construed. An overall assessment would therefore need to be undertaken on a case-by-case basis to determine whether this footage would be lawful. The European Data Protection Board’s guidelines generally provide that video surveillance is lawful if it is necessary in order to meet the purpose of a legitimate interest pursued by a controller or a third party, unless such interests are overridden by the data subjects’ interests or fundamental rights and freedoms. The installation of CCTV cameras for the purposes of protecting one’s property against burglary, theft or vandalism may therefore constitute a legitimate interest for video surveillance however, the necessity to use video surveillance to protect one’s property must end at the property boundaries.
In tendering its award, the tribunal attributed a significant amount of weighting to the fact that the CCTV cameras were requested to be installed principally due to the various vandalism incidents which resulted in significant damages to the common parts and also necessitated the filing of various police reports. The condomini collectively held that the installation of the CCTV cameras would (i) act as a deterrent to abusers; (ii) provide the condomini with the necessary information to be able to identify perpetrators of the vandalism and allow them to take the necessary action against them; (iii) give the condomini peace of mind in entering and exiting their properties without fear or harassment; and (iii) avoid unnecessary and repetitive costs incurred by the condomini in repairing the damages as opposed to paying a reasonable cost for the installation and maintenance of the CCTV cameras.
In view of the above, the tribunal held that the aggrieved condomini had a compelling legitimate interest which prevailed over the interests, rights and freedoms of the data subject, since the installation of the CCTV cameras were intended to protect the common parts from real and hazardous situations deriving from burglary, theft and/or vandalism. The tribunal therefore considered the decision taken during the annual general meeting whereby the request to have CCTV cameras installed in the common parts of the block of apartments was rejected, as “unreasonable and oppressive” in accordance with article 23 of the Condominium Act. The tribunal ordered the installation of the CCTV cameras, on condition that (i) the surveillance would “end at the property boundaries” and therefore would solely surveil the common entrance of the block of apartments and the lift from the inside of the block; (ii) the CCTV footage would be in the exclusive possession of the administrator of the block and available only to the police where necessary; and (iii) a sticker would be placed on the outside of the main entrance of the block clearly indicating that the block was under surveillance. The tribunal also provided that, whosoever of the condomini was against the installation of the CCTV cameras would be exempt from contributing towards the costs of the same (including the necessary maintenance costs).