Discovery of video surveillance in litigation

The recent High Court decision of Mr Justice Barr in Dudgeon v Supermacs Ireland Ltd., [2020] IEHC 600 has sparked discussions about access requests under Article 15 of the GDPR and Section 91 of the Data Protection Act 2018.

Justice Barr argued in this case that Supermacs was under no obligation to share CCTV recordings of an incident with anyone identified in the record who was seeking compensation for injuries resulting from the incident.

Facts of the case

The plaintiff appealed to the High Court against Groarke J.’s denial of a motion to discover the CCTV taping in the Circuit Court, which was filmed on January 6, 2017 at the Supermacs premises in Galway. The plaintiff ordered food and “sat in a chair that broke, causing her to fall to the floor, and as a result suffered personal injury, loss, damage, inconvenience and expense that continues.” Supermacs admitted the chair was broken , but denied that the plaintiff “fell to the ground” as a result of the chair’s defect. This was a central feature of the accident mechanics and the alleged injuries.

Circuit court proceedings and voluntary discovery, including video surveillance of the incident, have been filed with Supermacs.

Before Mr Justice Barr, it was argued on behalf of the plaintiff that CCTV footage is the best evidence of an event occurring because it records what happened at the relevant time in real time. The plaintiff relied on the McNamara v Dunnes Stores (Parkway) LTD decision [2017] IEHC 172, where Murphy J. concluded that CCTV footage depicting a supermarket incident was “critical” in determining whether the incident constituted defamation.

Supermacs stated that the discovery of the CCTV footage was sought on behalf of the plaintiff only, to verify her memory of the alleged incident and essentially “heal her hand” before giving evidence during the trial. It was argued that this was not an appropriate purpose for a discovery against Supermacs to be ordered.

In its decision, Justice Barr questioned the plaintiff’s true purpose in obtaining the CCTV footage of the incident and was convinced that the discovery was only intended to verify the plaintiff’s allegation that she had fallen to the ground. The application was rejected on this basis.

Discovery v. Access requirements – what can be learned from this judgment

Mr Justice Barr’s decision focuses on the Discovery Act and does not address privacy rights and the right to request access to personal data. The data controllers are still required to comply with requests for access to CCTV material, unless this is subject to a restriction under the GDPR or relevant data protection laws.

This decision does not have any significant impact on the right to access such video surveillance, but simply makes it clear that such access must be sought in the right forum and in the right context / purpose. In a statement on Supermacs’ decision, the Data Protection Commission stated that it “will continue to support data subjects and data controllers in putting all relevant aspects of data protection law into effect”.

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