D: Federal Constitutional Court (BVerfG) concerning Video Surveillance

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

In its resolution from August 11th, 2009 - 2 BvR 941/08 - the Federal Constitutional Court (BVerfG) elaborates that permanent video surveillance infringes the constitutional right of informational self-determination.

In the circumstances investigated by the Court, the state of Mecklenburg-Vorpommern ordered the regulatory agency in an administrative fiat to permanently monitor circulation routes, such as highways, by means of video surveillance. The surveillance results were then evaluated for violations of distance and speed regulations.

The Federal Constitutional Court is of the opinion that by recording the footage gained, the observed life processes have been technically fixed. An infringement on the constitutional right fo informational self-determination is also the case when behaviors are observed in a public space. In the case at hand, the Constitutional Court elaborated that interference with the constitutional right may only and exclusively be undertaken based on a permission standard. Therefore, the court stated, an administrative fiat was not sufficient.

If one applies this decision to an enterprise, the question of permission for video surveillance naturally arises here, also. One of these permission standards is § 6b of the Federal Data Protection Act, which regulates the use of video equipment in public areas. Public areas in this sense are merely those areas that are truly destined to be accessed by anyone, such as parking areas, salerooms or loading ramps. According to the law, video surveillance in these areas is only permissible for protection of householder's rights or for protection of justified interests for clearly specified purposes. Here, also, the regulation does not constitute a carte blanche for the surveillance of public areas.

If one compares surveillance in public circulation area with surveillance, for instance, in salesrooms, the weighing scale here can naturally not be any different. Even private sector companies must honor the right of privacy of their staff and customers as a constitutionally protected right.

Interference with the right to privacy must be in adequate proportion to the envisioned aim of the company. Rare occurrences of minor theft, therefore, do not entitle to surveillance of the entire salesroom. Rather, an alternative security measure ought to be considered in this case, prior to a video camera being installed.

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