D: The Latest about Video Monitoring in an Employment Relationship?

Category: Nachrichten, § 6b BDSG Videoüberwachung
By: K. Schiefer - 2B Advice GmbH - the privacy benchmark

The new Federal Data Protection Law, which comes into force on September 1, will affect a whole series of problems pertaining to labour laws. One of these is video monitoring.

 

The basic regulation concerning video monitoring in § 6b BDSG is not changed by the reform. However, it is applicable only to publicly accessible rooms. Frequently, working areas do not come under its provisions, unless sales areas or delivery areas, for example, are involved.

In the future, there will be a regulation in the new § 32 BDSG for data processing in the employment relationship. Paragraph 1 there stipulates that personal data of an employee may be collected, processed or utilized for the purpose of the employment relationship, if this [...], after the establishment of the employment relationship, is required for the implementation or the termination of the latter. Paragraph 2 states that personal data of an employee may be collected, processed or used for the discovery of criminal offences only if actual clues, which are to be documented, justify the suspicion that the person involved has committed a criminal offence, the collection, processing or utilization is necessary for the discovery and the protection-deserving interests of the employee in the exclusion of the of the collection, processing or utilization do not outweigh and especially the nature and extent with respect to the inducement, are not disproportionate.

In this connection, Paragraph 2 takes over the requirements for video monitoring, addressed in the decision of the Bundesarbeitsgerichts (BAG) (Federal Employment Court) of 8-26-2008 (Az. 1 ABR 16/07) for clarifying criminal offences. According to the justification for the law, Paragraph 1 shall apply to all cases of prevention of criminal offences and other legal infractions, which are related to the employment. The only admissibility criterion then is the question whether this measure is "necessary". A measure is necessary whenever there are no milder means for disposing equally effectively of the purpose pursued by the measure.

If the requirements are compared, a clear imbalance may be noted; the guidelines for video monitoring employees, who are not suspected of criminal offences, are significantly less strict than the regulations for monitoring employees, who are suspected. The BAG (aaO) had considered such monitoring to be still inappropriate. No doubt the courts will have to make a final decision in the future whether this actually can be combined with the personal rights of the employees.

The consequence of this new regulation is therefore not the desired legal clarity but rather a further legal uncertainty regarding the purposes for which and the configuration in which video monitoring will be permissible in the future. To begin with, also in the future, companies should use video monitoring installations sparingly and, especially, for clarifying criminal offences. The regulations, made for these cases, are unambiguous and also confirmed by case law.

 

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