Maureen O'Sullivan (Dublin Central, Independent)
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479. To ask the Minister for Justice and Equality if it is legal for landlords or owners of property to have a modified recording device in their rented property for the purposes of recording tenant activity in the property without their consent or knowledge; if her attention has been drawn to any loophole in the law that prevents these landlords from being prosecuted when a tenant does find such a device, for example, in the bathroom; if her attention has been drawn to the fact gardaí have responded to previous tenant claims stating it is not illegal to be recorded in the privacy of their home without their prior knowledge or consent; and if she will make a statement on the matter. [27128/14]

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Deputy will appreciate that I am not in a position as Minister to interpret the law or to provide advice on a particular case in response to a Parliamentary Question. In general, the type of situation mentioned by the Deputy may be contrary both to criminal and to civil law. As regards criminal law, Section 10 of the Non Fatal Offences Against the Person Act 1997 creates an offence of harassment where a person, by any means, intentionally or recklessly, seriously interferes with another person’s peace or privacy, including by persistently watching, pestering, or besetting him or her. The Act provides that a person guilty of the offence shall be liable on summary conviction to a fine of up to €2,500 or to imprisonment for a term not exceeding 12 months or to both. If a person is convicted on indictment, they may be fined and-or imprisoned for up to seven years.

As regards civil law, taking images of a tenant without their consent or knowledge in a part of the rented property where they have a reasonable expectation of privacy may be contrary to the terms of their tenancy agreement, including those implied under statute. It may also infringe both common law and constitutional rights to privacy. Furthermore, the Data Protection Acts 1988 and 2003 generally apply to personal images recorded by means of video cameras unless the recording activity relates to an individual's own personal, family or recreational activities i.e. the ‘household’ exemption.

Since the activity referred to does not appear to fall within the ‘household’ exemption, the recording of such personal data appears to come within the scope of data protection law. This means that the person responsible for such recording is a ‘data controller’ for the purposes of the Acts, and that any individual who is filmed may invoke the remedies provided under the Acts, including a right to establish the existence of personal data, a right of access to the data and a right to its erasure. Enforcement of data protection law in this jurisdiction is a matter for the Office of the Data Protection Commissioner. The statutory functions of the Office include the investigation of alleged infringements of the Acts.