Author: Domingos Farinho

 

I. Overview

1. Introduction

Video recording is one of the most relevant cases of special processing activities that can be developed under Art. 6 para. 1 lit. f. Over the last twenty-five years it has evolved into a commonplace activity which has come to raise several important issues in the data protection field. For that reason, it is surprising that the GDPR, having benefited from the body of work developed under the DPD, by both the Art. 29 WP and the CJEU, as well as in the literature, remains somewhat silent on the subject.[1] It is only convoked by the DPIA mechanism both through recital 91 and Art. 35 para. 1 and para. 3 lit. c, and even so, indirectly. However, for the DPIA to be applicable, the processing of personal data must already have been carried out in accordance with Art. 5 and Art. 6, and the GDPR does not provide for specific requirements for video recording in this regard. Thus, in many instances, processing of personal data through video recording will only be lawful through the claim and prevalence of a legitimate interest of controllers or third parties.

 

2. Uses, objectives, risks

Video recording has become almost ubiquitous in many domains. It is used in the private sector in large, medium and small businesses, both to cover areas opened to the public and office spaces, registering the actions of employees and clients alike. It is also common in condominium and home security systems. In the public sector it is also used to monitor services provided to users and consumers, ranging from utilities, schools and hospitals to law enforcement or simply to monitor the streets. In recent years mobile video-surveillance has come to join classic stationary video-surveillance enhancing the scope and variety of this kind of surveillance. Body cameras equipped in smartphones or people’s clothing or accessories (such as helmets), be them private individuals or law enforcement officers, but also in their vehicles, such as bikes and automobiles, have made video recording mobile to an extent not seen before. Drones have more recently presented a new addition to the video recording toolkit, posing new challenges due to their great versatility.

The most common objective of video recording, as video-surveillance, is to help prevent and repress criminal activities as well as to manage and assure the compliance of rules in designated environments, such as workplaces, sports facilities or residential spaces.[2] Video-surveillance aims to serve both as a deterrent to persons considering breaking the law and as a form of assurance to people using the premises and locations monitored by video-surveillance.[3] When crimes or any other kind of violation of rules do occur, video-surveillance is important and sometimes decisive to investigate and hold evidence on the matter.

However, video recording can also make people feel uncomfortable for being monitored and even controlled. Since it entails continuous capture of peoples’ activities, without any control on their part, it may have an effect on people’s behaviour regarding what they consider that could be done privately and what could be shared publicly. Even in public places, the absence of CCTV allows people to frame their own experience, to choose who can see and hear them, and not fear the scrutiny of daily routines. With the existence of video-surveillance such choice becomes much more difficult or even impossible, with video-profiling allowing to track people’s habits through a certain portion of a territory. Thus, there is a clear risk of inhibiting people’s actions and therefore hindering their fundamental rights to privacy and movement.[4]

II. Scope of application

1. Framework

Video-surveillance, whenever personal data are involved, consubstantiates a processing operation (→ Art. 4(2)) and it thus renders the GDPR applicable to all subjects under its material scope be they public or private. This also means that the exemptions in Art. 2 para. 2 apply, namely the processing of personal data “by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security” (→ Art. 2 mn. 47). In this case, the LED applies. The specific case of video-surveillance “by a natural person in the course of a purely personal or household activity” (→ Art. 2 mn. 54) will be analysed in more detail below (→ mn. 15).

 

 

 

 

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[1]Scholz, ‘Anhang 1 zu Art. 6’, in Simitis/Hornung/Spiecker gen. Döhmann, pp. 282-298.

[2]See EDPB, Guidelines 3/2019, p. 5.

[3]Ibid, p. 9.

[4]Scholz, ‘Anhang 1 zu Art. 6’, in Simitis/Hornung/Spiecker gen. Döhmann, p. 469, mn. 10.