10 March 2020
Residential property - March 2020 – 3 of 4 Insights
Can you maintain your privacy when selling or buying a property?
The right to privacy embodied in Article 8 of the European Convention on Human Rights states "Everyone has the right to respect for his private and family life, his home and his correspondence" (emphasis added) and, for a long time now, it has been clear as a matter of English law that information about a person’s home can be private.
The same information is also likely to be personal data, engaging rights under the GDPR. Obligations of confidentiality can also be asserted or created to protect the spread of information and the law of copyright can be used to control and protect the publication of the underlying marketing materials. Therefore, in principle, privacy can be maintained and this is becoming more of a priority for clients.
However, in practice, privacy can be very difficult to protect because of the large amount of information that is generated and freely disseminated during a sale and the lack of control a seller or purchaser has over that information and the people who use it during the process. Once the information is in the public domain, it is hard to control who else has access to it or how they might use it, which can affect personal security. Media coverage can also follow if the property, or the sellers or purchasers, are of interest to the public.
Today, unless the sources of the information are contained and controlled, it is often easy to obtain a large amount of information about where a person lives, which naturally becomes more valuable to the media depending on who it is. To protect privacy, proactive steps need to be taken well in advance of (rather than during) the process to contain a range of potential sources.
To market the sale, the following intellectual property is usually created around a property:
Each of these works contain personal details of the home, including:
This information is considerably more detailed than that available via the Land Registry.
Much of this information will not only be available via the marketing materials themselves and the estate agent’s website(s), but via other third party websites such as Zoopla or Rightmove. Further, photographs may also often appear via Google Search or Google Images and are, therefore, accessible via a search engine. All of this information is often still available long after a sale or purchase, unless removed.
By using the address details, others can access details on the Land Registry, including the legal owners of the property, charges and mortgages on the property, boundary information and other plans.
If the house is newly built by a developer, they may have published further photos or videos of the inside and outside of the property as part of their online portfolio to attract more work. Similarly, photographers or videographers will have done the same by publishing their work on their own sites to demonstrate the quality of their work to future customers.
Further intrusive information can be obtained using other online resources such as the previous purchase price details and previous photographs of the property – for example, via Zoopla or previous agent's sites where the property was put on, but then taken off, the market, only to be put back onto the market via a different agent.
As well as the information itself, there are then the actual people involved in the sale process, such as estate agents or representatives, to family office staff. Potential sellers can take photos when looking round and post them on social media. There are also those who created the underlying marketing materials, such as the photographer, videographer and brochure designers. Previous developers may still be proudly displaying their video tour of the property years after selling the property. All of these are potential sources of information for the media and some would argue that publicity generally helps a sale.
The details of your home, including its layout, location and contents can become a security concern. If such information is not freely available, it will be harder to compromise the property. It may be very important that the public do not know where you live.
Ultimately, if the media obtain details about a sale or purchase, they may run a story about it accompanied by photographs and videos. This happens quite often and is easy for them to do if the information is freely available without precautionary protections. Some articles, particularly in the USA, can even include location data. They may argue that their article is only helping to sell the property or that details of your property are not private because of the entries on the Land Registry. No doubt, you will have seen and read many of these types of articles, which can often be very intrusive and even voyeuristic.
Time is always of the essence when dealing with online publications. Taking legal action to have such an article removed without having already obtained, for example, copyright in the photographs, can be much harder and take much longer, especially as the media tend to avoid publishing address details. However, the longer it takes to remove online news content, the more likely it is that the article and photographs will be shared by readers on social media, which adds another layer of online publications to remove.
While it will not be a concern for everyone, for certain high value properties being sold or purchased by certain high net worth individuals who value their privacy, it is worth taking advice on doing so before embarking on the sale or purchase process. This is because controlling the information generated about your house and the people involved in that process is much more effective if measures are put in place at the very start. If not, information could leak before such measures are put in place rendering any later steps taken as useless.
Sellers will want to protect their information as much as possible during the sale process, up to the point of sale. Purchasers will want to take ownership of the marketing materials and have as much online information removed as possible so as to prevent people accessing it once they have bought the property.
If sellers wish to effectively protect their privacy, they need to take legal advice before the underlying marketing materials are created and used and estate agents are appointed. This is because they will want to control the copyright in the material and impose express confidentiality requirements on agents.
It will be important to establish who owns the copyright (it is unlikely to be your estate agent) so that it can be assigned and to prepare NDAs to cover representatives and potential purchasers. If you are a purchaser, you will need advice on how to obtain control of the relevant information and the underlying marketing materials to minimise access post purchase.
Please reach out to a member of our Reputation Management & Privacy Protection team if you'd like to learn more about how to protect your privacy when selling or purchasing a property.
by Lisa Bevan