D: Ruling by the BAG (Federal Labor Court) on video surveillance

Video surveillance of employees at work by CCTV is permitted only in the event of a concrete suspicion and with restrictions regarding place and time.

In its decision of September 26, 2009, the BAG holds that a video camera encroaches upon the employees' right to their own image and the right of self-determination over personal data as set forth in section 1 para 1 in conjunction with section 2 para 1 GG (German Basic Law). In principle, interference even with these basic rights is possible, but this interference must be reasonable, i.e. appropriate, necessary and proportionate.

In the court's view, the video surveillance in the present case was suitable in principle to further the apprehension of perpetrators, the proving of their guilt and the prevention of further thefts. It can facilitate the identification of the perpetrators and help dissuade them from further transgressions. The guilt of perpetrators of thefts was proved with the aid of video surveillance systems at other sites of the employer. Furthermore, alternatives, such as bag checks and personal searches, were no better suited for this purpose than pure video monitoring would have been.

The video surveillance was not appropriate. In the view of the BAG, video surveillance systems must be limited with respect to place and time based on an existing concrete suspicion. As the Federal Constitutional Court (NJW 2008 p. 1505 ff.) also states, the "feeling of being under surveillance" has an intimidating effect that results in a restriction on the exercise of basic rights. For this reason, video surveillance is admissible only in a restricted area and for a limited time if there is a suspicion of a criminal act relating to a specific person. The employer must have made findings that justify the concrete suspicion of a criminal act against specific persons. Surveillance systems cannot be put into operation without cause; instead, their operation must be linked to objectively verifiable conditions.

The only recommendation that can be made to companies in connection with the introduction of video surveillance systems is that they should only be installed once there is a concrete suspicion against individual employees. The grounds for suspicion should be documented. If the suspicion is not confirmed, the surveillance measure must be terminated.