Can The Use Of a Smart Doorbell Constitute a Breach Of Privacy?

New technologies, such as smart doorbell cameras, have become increasingly popular for home security purposes. However, this has also led to a growth of privacy concerns. The installation and use of smart doorbells have led to disputes between neighbours arising from concerns over violation of privacy rights and the use of surveilling equipment.

Are these smart doorbells permitted for private use in public areas? Can the use of a smart doorbell constitute a breach of privacy? In two recent cases in Alberta and Manitoba, these questions were the focus of disputes regarding invasion of privacy and surveillance by a smart doorbell.

LUPULIAK v. CONDOMINIUM PLAN NO. 8211689, 2022 ABQB 65

In the case of Lupuliak, a dispute between neighbours arose when the applicant, Ms. Lupuliak, installed a Ring brand smart doorbell on the front door of her condominium unit. The issue was her door faced a common hallway. Other owners in the building objected to the smart doorbell citing a breach in privacy and argued that its installation went against the condominium by-laws.

The Condominium by-laws stated that a unit owner:

• not make any repairs, additions or alterations to the exterior of the unit or building without first obtaining written consent of the Corporation;

• use the common property in accordance with the by-laws and all rules and regulation prescribed by the Corporation, and not unreasonably interfere with the use by other owners;

• not use their unit in a manner to cause nuisance or a hazard to any occupant or another unit

Lupuliak asserted that the reason behind installing the smart doorbell was to increase the security of her unit as there was an attempted break-in at her exterior patio doors. Without obtaining permission by the Condominium Board, she installed a security camera on the exterior of the building which captured video and audio of her patio. She also installed the smart doorbell on the front door of her unit that faced a commonly shared interior hallway, which captured audio and video when triggered by a motion sensor.

The smart doorbell captured the unit directly across the hall, whose owner felt the installation of the doorbell was an invasion of her privacy. Anytime she or one of her guests would enter or exit her unit, the motion sensor would be triggered, and video and audio would be captured.

The smart doorbell controversy further grew as the neighbour would often make an offensive gesture when being recorded and Lupuliak posted this footage on her Facebook account with a hashtag identifying the neighbour’s employer. As well, Lupuliak sent video footage of her neighbour taken by the smart doorbell to Alberta Health Services during the first wave of the Covid-19 pandemic to report her for not complying with public health orders. At some point, Lupuliak also submitted video footage from the doorbell to the Calgary Police Department to complain about her neighbours.

The issue of the doorbell was brought up in the Condominium Corporation’s annual general meeting, and in a unanimous vote, the condo residents agreed that Ms. Lupuliak should remove the doorbell by a certain deadline. The day before the deadline, counsel representing Lupuliak made an application to the court for a declaration that she need not remove the doorbell.

In Court, the Justice stated that Lupuliak’s conduct was improper and also found that the concerns of the neighbours were valid. Ms. Lupuliak’s action was dismissed. The Court concluded that an effective remedy was to enforce the condominium by-laws by ordering Lupuliak to remove the Ring doorbell, and to award full legal costs to the neighbour.

However, a similar case in Manitoba which concerned invasion of privacy and the use of a smart doorbell concluded with a contrasting result. In Zeliony v Dunn, the installation of a smart doorbell was found to be a reasonable action taken to exercise the right to defend one’s property.

ZELIONY v. DUNN, 2021 MBQB 136

In this case, the plaintiffs and defendant shared an entranceway. Shortly after moving into his condominium unit, the defendant, Mr. Dunn, noticed there was frequent tampering with his outdoor porch light, which left it defective. Mr. Dunn then installed a security camera inside his unit, which looked out onto his porch, to see who was tampering with his light. Shortly after the camera was installed, someone obstructed it with a sign and again tampered with the porch light. Mr. Dunn then installed a Ring brand “smart” doorbell, which someone tampered with on multiple occasions by taping over the lens.

The plaintiff admitted to the property manager that it was their husband who had been unscrewing Mr. Dunn’s lightbulb because the light attracted bugs while he would smoke a cigarette in the entryway each night. Mr. Dunn complied with the property manager’s request to turn off the motion sensor function on the doorbell and limit the range of the video as long as no more tape was place over the lens. However, shortly after, tape was once again placed over the lens of the doorbell. Due to the dispute, the plaintiffs eventually moved out of the building, but they sued the defendant for invasion of privacy, for the torts of intrusion upon seclusion and nuisance, and for damages for wilful infliction of nervous shock.

The judge found that the plaintiffs had vandalized the defendant’s property and that the

defendant was justifiably defending his property with the installation of the smart doorbell. The judge dismissed the claims of the plaintiffs.

THE TAKE AWAY

With the increased popularity in using security cameras such as smart doorbells, it is likely that there will be an increase of similar litigation regarding concerns of invasion of privacy and surveilling common property. Scrutiny towards condominium policies and by-laws may also increase. Care should be taken by anyone wishing to install and utilize a smart doorbell and condominium building owners and property managers may want to review, revise and amend building by-laws that govern the installation of such devices, and the overall security and privacy of the building’s residents.

If you have any questions, please contact us at (604) 736 9791 or email Alex Robertson

ar@dwslaw.ca.

Disclaimer: This article is not intended to serve as, or should be construed as legal advice, and is only to provide general information. Should you require legal advice for your particular situation, please get in touch with us. The information for this article was compiled on June 6, 2022. Any updates made to the article can be found at dwslaw.ca/articles.