In the last twenty years, the urban housing pattern, especially in large centers, has changed considerably. The violence, the expansion of the middle class at the end of the first decade of the 21st century, and the construction boom provided by the country’s economic growth led the Brazilians to prioritize the purchase of residential properties within condominiums: horizontal, more common in medium-sized cities, and especially vertical, more suitable for life in large Brazilian cities.
According to the last census of IBGE (2010) the country had 54,324,185 residences, of which 6,157,162 are apartments and 1,018,494 are villages or houses located in condominiums, representing a significant percentage of the population that chose to live in a semi-communal way, sharing leisure and recreation areas, as well as other benefits, besides the security provided by the surveillance structures present in most condominiums, the primary reason for the option for this type of housing.
Thus, the “collective” living provides countless benefits for the condominium dwellers, allowing, in many cases, to do almost anything without leaving their homes to face the daily life of the country’s urban centers.
However, despite the aspects of security, comfort and welfare being the main attractions – in some cases decisive in the choice for a condominium – living together in these housing centers is a complex relationship, especially when the subject is approached from the legal perspective.
A particularly relevant point concerns the capturing of images on the internal monitoring circuits of the common areas of the building or village. This is because, when analyzing under the functional aspect, it is undeniable the need for surveillance in areas where, routinely, dozens of people circulate among residents, condominium employees, service providers and others, ensuring the safety of all and the preservation of the asset. Moreover, the recordings of these circuits are necessary for the prevention of accidents and the investigation of possible claims.
The theme’s sensitivity, however, comes from its analysis from a legal standpoint, especially with regard to the need to verify the protection of intimacy and privacy of the residents, visitors and others who may circulate through the condominium’s common areas, especially with regard to the use and destination given to the images captured by the internal monitoring systems.
This is because the image, as an individual attribute, is treated by the General Law of Data Protection (Law No. 13.709/2018), as personal data – art. 5, I – and must, therefore, comply with the rules provided in the legislation regarding its collection, storage, sharing and deletion.
It is important to point out that even if the image capture is used with the purpose to ensure the security of the condominium dwellers, there is no legal provision that exempts its treatment from the rules contained in the LGPD, because it is used for private security, which does not fit into the cases excepted in art. 4 of the Law.
In this context, it is important to understand and delimit the role of the condominium administrator in the planning, management and operation of the condominium’s internal monitoring and surveillance system, mitigating the risks resulting from the eventual misuse of the images captured and stored by the condominium.
At first glance it may seem unnecessary for the condominium management to spend so much time planning the management of internal monitoring and submit to the rules imposed by the new legislation. However, considering the possible developments and implications for eventual misuse of the data obtained by capturing images of the common areas, it is important that the condominium administrator is aware of his/her role and the consequences that misuse can have.
As provided in art. 1.348, V, of the Civil Code, the condominium administrator is responsible for “providing the conservation and the guardianship of the common areas and to look after the provision of services that are of interest to the owners”. To this end, when analyzing the structuring of surveillance and monitoring systems, its role should be oriented towards establishing planning for the implementation of internal surveillance, as well as setting guidelines for capturing images and even seeking guidance of technical order that allows its proper functioning.
His/her performance should be limited to the search and proposition of solutions for the residents, which, later, should be taken – after hearing the advisory board – to the screen of the general meeting of condominium dwellers, which may or may not approve the proposals presented, modifying them, as necessary, by observing the quorum established in the condominium agreement.
This is because the condominium administrator – although responsible for looking after the condominium’s assets – does not have unlimited power in the decision making process, and the proposals must be approved by the deliberative body, and then, these proposals will have legal support to prevent the manager from being held responsible for any misuse of information obtained with the capture of images after the implementation of the surveillance system.
In this sense, it is necessary to pay close attention to data security in relation to common monitoring, – in which all condominium dwellers have access to surveillance cameras – a practice adopted in some condominiums more recently and which sometimes exceeds reasonableness, especially in relation to the impossibility of ensuring the security of the images obtained.
The purpose of shared monitoring is to ensure the access of all residents to the internal circuit, facilitating the surveillance of common areas to ensure the welfare of those who frequent them, especially children, who gain greater freedom to use the leisure facilities without the need to be accompanied at all times by an adult, and also to prevent the occurrence of accidents, among others.
However, despite the fact that the search for collective welfare guides everyone’s access to the internal monitoring cameras of the common areas, these images may be used improperly, eventually causing the condominium to be held liable for damages.
As an example of damage to the legal entity (condominium),it can be mentioned the case of the capture of an intimate image or even of an accident, which, out of context, become a reason for mockery or ridicule through disclosure in social media or the Internet. In this case, since it is unfeasible to find out who was individually responsible for the recording and disclosure of the image, the responsibility for repairing the damage will undoubtedly fall on the condominium.
It is important to point out that the Federal Constitution guarantees the inviolability of intimacy and private life, granting the protection of the honor and image of individuals or legal entities the status of a fundamental guarantee (art. 5, X), with indemnification for material damage and, above all, moral damage resulting from its violation.
Even in the event in which the image is intended to the investigation of a possible crime or eventual criminal practice or even for investigation concerning the damage caused to the assets of the condominium or of third parties, there is no way to exclude that its improper or transverse use is not liable to be held responsible by the offended party.
In order to mitigate such risks, the planning of the internal surveillance system should observe special care regarding the signaling – monitored environment – informing about the video surveillance, as well as keeping available for the interested parties information about the use of the data investing, especially, in the training of those responsible for the treatment of the data submitted to the condominium management and even the residents themselves, in the case of sharing the monitoring system, since those who are granted the custody of the images should be fully aware of the relevance of the information under their guardianship and be aware of the implications of the misuse of such data.
Therefore, the condominium manager, be it the condominium administrator or a legal entity specialized in the provision of administration services, must be aware of the requirements established by the provisions of the Civil Code, the Federal Constitution and the General Data Protection Law (LGPD) – even if there are constant modifications in the established understandings about this legislation – in order to prevent the personal liability of the condominium managers or even the legal entity, minimizing the risks arising from the undue use of the image of third parties.
Autor: Pedro Batistoti Boller • email: pedro.boller@ernestoborges.com.br
