Case Summary and Outcome

The majority of the Constitutional Court of Peru held that the continuous use of surveillance technologies entails a violation of privacy rights. The application was brought by a local environmental activist against a mining company for the use of surveillance cameras and drones that recorded and took pictures of her home. The Court stressed that the use of these devices was not unconstitutional per se, but only when they were employed in unreasonable or disproportionate manners. The Court held that the permanent use of the video camera and the possibility of constant overflight on the residence of the plaintiff constituted a constraint on her freedoms and privacy.

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Facts

In February 2016, Maxima Acuña Atalaya filed a habeas corpus action against Minera Yanacocha SRL looking for an injunction to refrain from surveillance activities. According to the plaintiff, in January the mining company had over flighted her home and adjoining fields with a drone. She also claimed the defendant installed surveillance cameras pointing to her home.

Minera Yanacocha grounded its answer on the fact that the plaintiff and her family were not the owners of the field but squatters. The plaintiff affirmed that there are ongoing criminal and civil procedures against her for improper occupation. According to the defendant, the drone was used for taking care of their private property and was in the air for only 10 minutes because it was a test flight. Regarding the surveillance camera, it only captured the activities of anyone walking by that track and did not track the plaintiff’s conduct or intimacy specifically.

In May 2016 the First Chamber of Criminal Appellations of Cajamarca rejected the habeas corpus action. Against this decision, the plaintiff filed an appeal of constitutional grievance bringing the procedure to the Constitutional Court.

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Decision Overview

The majority of the Constitutional Court of Peru delivered a ruling on the use of surveillance technologies to intimidate an environmental activist and her family. The main issue before the Court was whether the placement of a video camera and the flight of a drone over the family’s home and adjacent fields entailed a violation of their privacy rights.

The plaintiff requested the cessation of the acts of harassment via the surveillance and monitoring of their family’s activities. The acts of harassment referred to 1) the placement of a video surveillance camera 300 meters from their home; and 2) the flying of a drone above their property. The family alleged a violation of the right to the inviolability of the home.

On the other hand, Minera Yanacocha raised the defenses of private property and denying any violation of privacy. It affirmed that the reason for installing the cameras was that Mrs. Acuña and other parties entered private fields to vandalize and damage the property. The mining company held that the use of the
camera did not violate nor threaten the privacy right of the plaintiff because it did not register what happened inside their home – it only registered what took place on the outside where anyone would be passing by.

The Court framed the request, not on the right to the inviolability of the home but the right to privacy. Even though the Peruvian Constitution of 1993 did not expressly recognize the right to privacy, the constitutional jurisprudence and Article 11 of the Inter American Convention of Human Rights made up for the absence. Following previous rulings, the Constitutional Court defined the right to privacy as “the data, facts or situations unknown to the community that, being true, is reserved for the knowledge of the subject himself and a small group of people, and whose disclosure or knowledge by others brings about some damage” Peru, Constitutional Tribunal, 06712-2006-PHC [para. 14].

The use of video cameras to register public or private spaces was not unconstitutional per se; it was only unconstitutional when infringing a human right unreasonably or disproportionately. The legality to place cameras would not allow “to mention a few possibilities, […] forms of monitoring or surveillance that would only correspond to be judicially authorized; nor would it legitimize the eventual harassment or stalking of certain people, through cameras located in public places; nor would it allow forbidden forms of interference in personal chores or in private and family life, for example, through the improper or unnecessary registration of images in private spaces” [para. 21].

The Court held that the continuous use of the surveillance camera by the mining company entailed a violation of the right to privacy of the plaintiff. The evidence showed that the video camera was placed 300 meters from the home of the plaintiff, in a hillock allowing good visibility to it. Even if there was no physical trespass, the continual presence of a monitoring gadget can become an unbearable situation of surveillance and tracking. In this case, the “continued use of the video surveillance camera would reveal private details of personal or family life that, as in this case, do not necessarily take place inside the house and, at the same time, [could] mean an undue form of constraint on personal freedom” [para. 23]. Therefore, the Court found that the use of the surveillance camera was harmful and unjustified, violating the family’s privacy rights.

According to the Court, the use of drones represents a new challenge to privacy rights due to the possibility to add high-definition cameras, microphones, and temperature scanners. However, the Court pointed out that privacy should be favored. In this sense, Act No. 30740 for the regulation of use and operations of remote piloted aircrafts established responsibilities in case of privacy violations.

The Court then compiled seven criteria for establishing privacy standards for the use of drones:

There should be limitations on where drones can be flown, particularly in urban areas.

The operator should take all the necessary measures to avoid violating or threatening the right to privacy of any person.

The drone device operator should avoid accessing places that pose a risk to people’s privacy, such as windows, gardens, terraces, or any other space of a private property where access is not previously authorized.

Intrusions to privacy should be reasonable and proportionate to the aim/interest being achieved.

Drone operators should not be allowed to fly over private or government fields without authorization.

The exception would be in the case of public interest or humanitarian purposes.

Using drones for personal data collection would only be legitimate in the case that it is done in one’s own property or inside a perimeter without entering a public or third-party place. Overflight above crowds should be banned. People maintain privacy and image rights even in public spaces.

Taking these seven criteria into account, the Court set the issue on whether the outside of the plaintiff’s home and the land adjacent to it constituted a space where private life could be scrutinized. According to the Court, to determine the private zone, two conditions could be met: subjective expectancy and objective expectancy. A person exhibited a subjective expectation of privacy “by showing interest in maintaining a private space” [para. 34]. On the other hand, the objective expectation had to be “accepted as reasonable by society” [para. 34]. Due to the difficulty in determining which expectancy applied in this case – where activities were carried out in open spaces – the Court articulated the concept of the “doctrine of open field” [para. 34].

The Court concluded that this evidence showed “elements of harassment to the individual freedom of the plaintiff” [para. 37]. Even though the evidence showed that the drone overflew the area around the home of the applicant only one time and for ten minutes, the fact that it was an open space left the possibility of new violations by the defendant.

The Court held that “as it was an experimental flight, as the defendant allege[d], the company was able to fly the drone device over any space in the extensive area of its property and avoid approaching the air space surrounding the plaintiff’s home” [para. 37].

In conclusion, the Court granted the habeas corpus and ordered Minera Yanacocha to end the actions against the private life of the plaintiff, uninstalling the surveillance devices and avoiding the use of drones near their home.

Judges Ferrero Costa and Sardón De Taboada voted for rejecting the habeas corpus until facts about the property of the lands and home were clarified. They noted that the surveillance cameras were installed inside the property of the defendant, and it was not clear whether the plaintiff occupied the place legally
or illegally.

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