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Is visual doorbell infringing on privacy? court: fulfill the duty of care while safeguarding ones own rightsinterests
[2021-03-12]

    In order to effectively protect their own safety, many families choose to use electronic security products, and smart visual doorbell is one of them. It can not only recognize faces at close range, record videos and collect visitor information automatically, but also record uninterruptedly through mobile APP and save the videos by memory card or data cloud. However, data collection is indiscriminate, which, especially in densely populated areas, may threaten the privacy and information security of people around. Recently, Qingpu District People's Court of Shanghai concluded a case of infringement caused by doorbell installation. 

 

[Case Review]

Yang Mou and Lu Mou reside in adjacent buildings in the same neighborhood. Lu Mou's entry door is facing toward Yang Mou's living room and master bedroom in the south. The buildings are about 20m apart, and between them are Lu Mou's outdoor garden and public road. For the sake of family safety, Lu Mou installed a visual doorbell on the entry door for remote real-time monitoring, which can record videos all the day. Yang Mou asked for removal of the doorbell as it has infringed on his personal privacy and seriously affected his family's normal life and physical and mental health. Failing to reach a settlement, Yang Mou sued to Qingpu District People's Court of Shanghai.

Yang Mou complained that as two buildings are opposite to each other with narrow spacing in the north and south, the visible doorbell installed in the center of Lu Mou's entry door has exposed his family life and personal privacy to Lu Mou completely, bringing huge safety risks and mental damage to his family members.

Lu Mou argued that the visual doorbell isn't a monitoring device. It's intended for recording the activities of people in the doorway to keep his house safe rather than intentionally pry into or intrude on the privacy of others. As existing monitoring devices in the community and his own access control device are imperfect, it's necessary to install a visual doorbell capable of video recording to learn about the activities in the doorway. Besides, the videos recorded are too blurry to identify the indoor furnishings, personnel activities and physical features, etc, which won't infringe upon Yang Mou's privacy. So, he shall not bear the tort liability.

 

[Case Study]
Upon site investigation, Qingpu District People's Court of Shanghai found that the purpose of Lu Mou's installation of the visual doorbell is to ensure the safety of his family, which is reasonable to certain extent. However, while protecting his own rights and interests, Lu Mou should fulfill his duty of care by installing the proper equipment in a reasonable way at the right place to minimize the impact on the public interest and the privacy of others.

As Yang Mou's house is facing the doorbell in the south, scenes in the house are inevitably recorded, and the videos, though blurry, can be identified. The video recording and storage functions and installation position of the doorbell has actually posed a threat to Yang Mou's private space (scenes and activities in his house), private activities, and private information. Given that there are surveillance cameras in public places in the community and the doorbell can be installed in another place to protect Yang Mou's privacy, it's unnecessary for Lu Mou to install the doorbell in the center of the entry door.

For the above reasons, Yang Mou's request for removal of the doorbell was supported.

Lu Mou removed the doorbell consciously after the judgment.

A natural person shall enjoy the right to privacy, including his/her undisturbed private life, private space, private activities, and private information. Information in private residence is an important part of the privacy enjoyed by individuals and is protected by law.

It's rational for people to install visible doorbells capable of video recording and storage for the sake of their safety. However, the exercise of rights should have boundaries and can't be based on infringement of the legitimate rights and interests of others. In modern amalgamated dwelling, visible doorbell may record the personal information and daily activities of neighbors, which objectively intrudes on their peaceful life, private space and private activities. A party who deems it necessary to install the smart visual doorbell shall choose the proper installation method and position to avoid intrusion on the privacy of others.   

In this case, doorbell is the property of the owner, who has the right to use it for intended purpose. However, the photographed party also has the right of privacy, that is, right to enjoy private space and undisturbed private life. The collision of two private rights is fully reflected here.

The Civil Code of the People's Republic of China makes separate provisions on the right of personality, which enriches the connotation and protection scope of the right of privacy, extends the definition of privacy from embodying privacy to taking into account the subjective will of the obligee, and makes direct typed and exemplifying provisions on invasion of privacy, fully embodying the people-oriented legislative spirit.

In the course of the trial, the judge has carried out comprehensive and sufficient consideration on whether Yang Mou's privacy is involved through site investigation and tests. In addition, he delimited the boundary for Lu Mou to exercise his rights in view of his original intention to protect his property, and standardized the use of smart household products.

(The judgement was made before the Civil Code of the People's Republic of China takes effect.)

 

[Relevant Laws]

Tort Law of the People's Republic of China

Article 2 Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law.

"Civil rights and interests" used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honor, right to self image, right of privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right to use a trademark, right to discovery, equities, right of succession, and other personal and property rights and interests.

Article 6 One who is at fault for infringement upon a civil right or interest of another person shall be subject to the tort liability.

...
Article 15 The methods of assuming tort liabilities shall include:

1. cessation of infringement;

2. removal of obstruction;

3. elimination of danger;

...

Civil Code of the People's Republic of China (Effective as of January 1, 2021)

Article 1032 A natural person enjoys the right to privacy. No organization or individual may infringe upon the other's right to privacy by prying into, intruding upon, disclosing, or publicizing other's private matters.

Privacy is the undisturbed private life of a natural person and his private space, private activities, and private information that he does not want to be known to others .

Article 1033 Unless otherwise provided by law or expressly consented to by the right holder,

no organization or individual shall do the following acts:

(1) intruding upon another person's private life through making phone calls, sending text messages, using instant messaging tools, sending emails and flyers, and the like means;

(2) entering into, taking photographs of, or peeping into other's private spaces such as the residence or hotel room of another person;

(3) taking photographs of, peeping into, eavesdropping, or disclosing the private activities of another person;

(4) taking photographs of or peeping at the private parts of another person's body;

(5) processing another person's private information; and

(6) infringing upon another person's privacy through other means.

 

(Authors: Peng Liying, Zhu Tingting, Qingpu District People's Court of Shanghai)

 

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