A woman who was seeking compensation for “distress” after she was photographed urinating on an Aberdeenshire golf course owned by U.S. President Donald Trump has failed in her claim.
Carol Rohan Beyts, 62, was seeking £3,000 from Trump International Golf Links Scotland, claiming staff had breached data protection legislation.
However, a sheriff ruled that there was “no causal connection” between the distress she suffered and the company’s breach of failing to register under the Data Protection Act 1998.
Sheriff Donald Corke heard that the pursuer, a retired social worker, had gone for a walk on 11 April 2016 with her friend on the dunes and beach at Menie, using the public right of access to cross the golf course on the Menie Estate.
The purser told Edinburgh Sheriff Court that she and her friend – known for their opposition to the controversial development – entered the golf course and walked over the access, pausing to take photographs next to the flagpole which was the subject of a disputed planning application.
As they continued their walk across the Menie Burn the pursuer, who at the material time was suffering from “urinary incontinence”, realised she needed to make an “emergency toilet stop”.
She shouted to her friend that she needed a private moment and looked for a private place as she did not intend to be seen.
She squatted down in the dunes and relieved herself and did not think that she was being observed.
But unbeknown to her she was under surveillance from about 230 metres away by two of the defenders’ employees, a security officer and an irrigation technician, who recognised her as being an opponent of the development and took a photo of her squatting in the dunes with his mobile phone.
As the pursuer and her friend later crossed the course to leave, they were approached in a vehicle by another course employee and a press photographer, who took further photographs of the pair.
The court heard that three days later at about 10pm, two police officers arrived at the pursuer’s home and charged her with a contravention of section 47 of the Civic Government (Scotland) Act 1982, which the sheriff described as a “frivolous criminal complaint” that was ultimately dropped.
The pursuer told the court that she was “distressed” by the time at which she was charged and the concern it caused her about family members, and that she was and remained distressed by the fact that men had watched her urinating, and had been photographed in the act.
She lodged a small claims summons seeking £3,000 with interest and expenses, claiming that she was entitled to compensation in terms of section 13 of the 1998 Act where she had suffered distress by reason of the contravention by the defenders of section 17 of the Act.
The defenders relied on section 29 of the 1998 Act, which provides inter alia a limited exemption from the first data protection principle of fair and lawful processing for the “prevention and detection of crime and the apprehension or prosecution of offenders”.
The sheriff held that the pursuer should not have been photographed, but ruled that distress was not caused by the defenders’ admitted failure to register.
In a written judgment, Sheriff Corke said: “What must specifically be noted is that the pursuer based her case on section 17 of the 1998 Act. Her solicitor advocate was specific in stating that were it not for the failure to register, we would not have been here considering the case.
“The argument was not, then, about the data protection principles. It follows that however unattractive an argument under section 29 of the 1998 Act might be (that the photograph was taken with a view to the prosecution of an offender), no decision is required as none of the data protection principles is pled.
“As indicated in the findings in fact and law, the only requirement of the 1998 Act upon which the pursuer founds is the breach of section 17 (ICO registration). The penalty for breach of section 17 is prosecution under section 21 of the 1998 Act.
“It follows that the pursuer has not suffered any distress ‘by reason of’ the contravention by the defenders of their admitted breach of the registration requirement. That is a matter between the defenders and the registration and prosecution authorities.
“There is no causal connection between the lack of registration and the distress that I accept the pursuer has suffered. All that can usefully be said is that this was distress arising out of a single event, and not all the distress was due to the photographing of the pursuer.”
However, he added that she “should not have been photographed”.
“I have to emphasise that officious bystanders taking pictures of females urinating in the countryside put themselves at very real risk of prosecution, whether for a public order offence or voyeurism,” Sheriff Corke said.
Had the pursuer established liability the sheriff said he would have awarded her compensation of £750, but having assoilzied the defenders from the claim of the summons he ordered the pursuer to pay the defenders expenses of £300.