D: Traffic Monitoring and Person Identification

Category: Nachrichten
By: O. Gönner - 2B Advice GmbH - the privacy benchmark

In its sentence 2 Ss OWi 1215/09 from 16 November 2009, the Bamberg OLG determined it legal to temporarily record automobiles using a videorecording to identify the driver's identity when under reasonable suspicion of having committed an offense.

The case leading up to the resolution was the fact that the Bavarian police had been using a video system consisting of three cameras to measure violations remotely. A camera, the remote camera, recorded the traffic from a distance of 300 meters. A second camera, the monitoring camera, recorded the supervised area of 50 meters, which is marked on the road with lines, and a third camera was activated by the monitoring team due to a remote violation. Only the third "identification camera" was able to identify the driver and identifying marks, due to its configuration.

 

This differs from 2 BvR 941/08, where the Bavarian police made continuous recording of automobile traffic. The OLG also recognizes that the driver's personal rights must be protected, but the OLG determined that neither the remote camera nor the monitoring camera records personal data or information. The recording made by the identification camera, on the other hand, affects the personal rights of the driver. Legal basis for this action includes court regulation §§ 100 h l 1 Ne. 1 StPO IVm. § 46 OWiG, which allows a photograph to be captured when investigating a case or determining a suspect's domicile, as long as attempts to determine the identity by other means were found to be less successful or impeded.

 

According to the court's opinion, the remote camera and monitoring camera combination is sufficient to generate initial suspicion, which allows the identification camera to record. Alternatives to criminal prosecution for the remote violation, such as stopping on train tracks, have been checked by the court and determined to be insufficient, leading to the identification camera's necessity.

 

As this example clearly shows from an official standpoint, reasonable suspicion and a row of alternatives are necessary for an identifying video recording. The same holds true for a video recording in private areas. A company may only monitor its employees using a video camera when there is a concrete evidence that an offense has been committed, and other alternatives are no longer available.    

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