The High Court has provided useful assistance in Dr Monica Bijlani v Medical Express (London) Ltd [2024] EWHC 2246 (KB) on the data protection rights of individuals using commercially let properties.
The facts and issues
The tenant, Dr Bijlani, had entered into a sub-underlease from Medical Express (London) Limited for a first-floor room at 117A Harley Street, London (the "Premises") in 2014. The lease specified that the Premises were to be used for consulting and dental procedures by a fully registered dental practitioner.
In April 2021, Dr Bijlani was suspended by the General Dental Council and could no longer practise as a fully registered dental practitioner. Despite the suspension, Dr Bijlani continued using the Premises to provide cosmetic services. The landlord forfeited the lease under section 146 of the Law of Property Act 1925 due to the breaches of the user covenant. The main dispute focused on (1) whether Dr Bijlani had breached the terms of her lease by continuing to practise from the Premises after her suspension and, if so, (2) whether the court should grant relief from forfeiture. On the facts, the court found that Dr Bijlani had breached the lease and that the lease had been validly forfeited but granted relief from forfeiture.
Following Dr Bijlani's suspension, the landlord installed a CCTV camera above the entrance to the toilets in the building, on the same floor as the Premises let to Dr Bijlani. The camera pointed at the stairs and to the door of Dr Bijlani's Premises. When the door was open, it allowed a partial view inside.
This gave rise to a second area of dispute and Dr Bijlani sought a declaration that the processing of her data by the defendant was "unlawful and breached the provisions of the Data Protection Act 2018 and the regulations relating thereto". She specifically argued that it was unlawful for a camera to record visual and audio clips of both (1) the entrance to her room and (2) within her room when the door was opened.
The landlord argued that CCTV had been placed in that area for the legitimate purpose of monitoring who was using the building's toilets.
The decision and reasoning
The court granted the declaration sought by Dr Bijlani, limited to the data from the CCTV camera.
In reaching the decision, the court held that there was no real reason why the CCTV camera could not have been placed to exclude Dr Bijlani's room from view.
The landlord had shown it was determined to gather evidence that Dr Bijlani was using the Premises in breach of the terms of her lease. The camera had been installed shortly after Dr Bijlani's suspension when the landlord's managing director discovered the suspension. On balance, the court found that the landlord was using the CCTV to monitor who was leaving and entering Dr Bijlani's room. No argument was made that it was a legitimate collection of data.
Summary
Landlords should not assume they have the right to place CCTV on their property in such a way that it infringes the data protection rights of individuals using the property. This applies even in circumstances where there are disputes about whether tenants are adhering to the terms of their lease, such as using the property in the way permitted.
Though the court does not appear to have made a finding as to the precise infringements of the applicable data protection law (which would be the UK GDPR, and not the Data Protection Act 2018, despite Dr Biljani's apparent pleadings), the decision appears to apply to both the tenant's own data and those attending their premises (whether they are employees of tenants, or the tenant’s visitors).