I spy with my little eye: video surveillance
Under German privacy law, the use of cameras in publicly accessible areas is only permitted under very specific conditions.
What is a publicly accessible area?
A “publicly accessible area” within the meaning of Section 6b of Germany’s Federal Data Protection Act (BDSG) is an area which anyone can enter. Any restrictions on access, such as entrance tickets or proof that a person has reached the age of majority, are of no relevance to this definition. Only areas which can be entered exclusively by a specific and clearly defined group of individuals are not public areas within the meaning of Section 6b of the BDSG.
Whether cameras are permitted in stairways, car parks, lobbies, parks, restaurants, cafés and shops has to be determined based on the requirements described in Section 6b of the BDSG.
Video surveillance: When am I allowed to use cameras in my company?
Before using video surveillance systems, the company should determine the specific objective of its video surveillance, because groundless and aimless video surveillance is always unlawful.
Section 6b Para. 1 of the BDSG contains a list of purposes which can be used to justify the use of cameras in companies:
- monitoring to exercise the right to determine who shall be allowed or denied access or
- monitoring to pursue rightful interests
Whereas monitoring to exercise the right to determine who shall be allowed or denied access is primarily related to security interests, monitoring to pursue rightful interests could essentially apply to any interest approved by the legal system. But it’s not just about the purely subjective interest of the company; instead, video surveillance must also be objectively justified and necessary.
How do the rights of those affected influence the permissibility of video surveillance?
Video surveillance is unlawful if there are indications in a particular case to suggest that the justification for such surveillance is outweighed by the legitimate interests of the persons affected.
As such, for every camera used it is necessary to weigh the interests of the company against the right of ‘informational self-determination’ of the persons affected by the video surveillance (customers, employees). It is easy to understand why the monitoring of wellness areas, toilets, dining halls, break rooms and other comparable retreats is in principle prohibited. Installing cameras in places like these is a violation of the subjects’ privacy and personal space.
If video surveillance may also involve recording employees, then that surveillance may be subject to codetermination of the works or staff council. In order to protect the legitimate interests of employees, there should be sufficient unmonitored areas to which the employees may withdraw. Covert video surveillance is unlawful unless there are factual indications which justify the suspicion that the worker has committed a crime. But caution is advised here, since companies which use cameras unlawfully and thus become aware of a crime can expect their evidence to be declared inadmissible in a court of law. Such evidence cannot therefore be used in court.
Video surveillance: What else is it important to know?
It must be made clear that video surveillance systems are in operation, for example by mounting clear signs which also specify which entity processes the data. In outdoor areas it is important to ensure that cameras do not monitor any public thoroughfares or adjacent properties. Furthermore, stored video recordings must be deleted at regular intervals: The deletion periods envisaged by the supervisory authorities are short (for example, 48 hours according to the State Commissioner for the Protection of Personal Data and the Freedom of Information of Rhineland Palatinate).
So whether video surveillance is lawful depends on a number of factors, including:
- who is affected
- size of the area being monitored
- opportunities for people to avoid being monitored
- positioning of cameras in the area
- angle and field of view of the cameras (ability to zoom and pan)
- duration of observation (permanent or for a specific event)
- sharpness of the recorded videos etc.