Access and the call of nature

Last year, as Carol Beyts walked with her friend along the public rights of way through Trump International’s golf course on the Menie estate, “she needed a private moment and looked for a private place”, as Sheriff Corke put it. “Unbeknown to her, the pursuer was under surveillance”.

Employees of the golf course had spotted Beyts and were photographing her from afar. Three days later two police officers charged her at her home with contravening s 47 of the Civic Government (Scotland) Act 1982. Beyts subsequently instructed Govan Law Centre and raised a small claims action against Trump International Golf Scotland under the Data Protection Act 1998 for damages of £3,000.

The defenders attempted to have the case remitted to the ordinary cause; however this tactic was thwarted by the fact that the claim was sufficiently straightforward. Had the case been remitted the pursuer, a retired social worker, would not have been in a position to continue the action as costs would have been prohibitive.

On 5 April 2017 in Edinburgh, after a three day hearing in the small claims court, the sheriff found in favour of the defenders. If, however, there was ever a case to claim a moral victory then this was it. The judgment, announced in open court on the third day, agreed with the pursuer on all the facts. She was found to have been lawfully urinating in terms of the Scottish Outdoor Access Code. In photographing her, Trump International’s employees were found to be acting within the course of their employment and, in subsequently making a complaint to the police, these photos were found to be “data” being “processed” by Trump International as “data controller” for the purposes of the Act. Further, she was found to have been genuinely distressed by the defenders’ actions. The subsequent criminal complaint was found to be “frivolous”. The claim failed ultimately because the distress endured by the pursuer was not found to be linked to the defenders' failure to register with the Information Commissioner as laid out in the statement of claim.

Surveillance of individuals by private companies over property they regard as theirs to protect will no doubt become a field of much activity over the coming years. Carol Beyts's private moment could indeed come to be the proverbial snail in the ginger beer for Data Protection Act actions in Scotland. Future litigants should take note therefore of the judgment’s implications for claimants relying on breaches of the eight data protection principles in sched 1 to the Data Protection Act. Had Beyts’s action been founded on breach of the principles, the sheriff would have awarded compensation of £750.

It is apparent that the law in relation to damages for breach of the Data Protection Act is now well settled in Scotland and England. The English Court of Appeal decision in Google Inc v Vidal-Hall [2015] EWCA Civ 311 established that s 13(2) of the Data Protection Act could not be interpreted compatibly with article 23 of Directive 95/46/EC and therefore required to be read as if it gave such a right of compensation for distress only (and economic loss). This case was followed in the recent decision of Sheriff Ross at Edinburgh in Woolley v Akbar [2017] SC EDIN 7. In Woolley, the defender used CCTV equipment to capture footage of their neighbour’s private garden. Video and audio recordings were found to be personal data; the defender was a data controller and not registered with the Information Commissioner. The pursuers were found to have suffered distress and the court awarded compensation for distress. Pursuers in future cases dealing with similar circumstances should be explicit in their averments concerning the data protection principles in establishing causation.

The Beyts case also has lessons for future defenders relying on the Act’s exemptions, in particular the limited exemption from the first data protection principle for the prevention and detection of crime and the apprehension or prosecution of offenders. Despite the sheriff’s misgivings about the credibility of the evidence of Trump International’s employee, he did appear to accept that the employee was genuinely taking photographs because he believed a crime was being committed. Nevertheless, although the passage did not make it onto the written version, the judgment read in open court contained the following warning: “I have to emphasise that officious bystanders taking pictures of females urinating in the countryside put themselves at very real risk of prosecution whether for a public order offence or voyeurism.”

It is apparent therefore that should Beyts, or anyone else, again need a private moment using the public rights of way through the golf course at Menie, they are perfectly entitled to do so. This case is therefore further confirmation of the public’s rights of access in terms of the Land Reform (Scotland) Act 2003 and the lawfulness of urinating while exercising those rights in accordance with the Scottish Outdoor Access Code.