Supervisory authorities can be wrong

Can a data protection supervisory authority order the removal of video cameras in the case of unlawful video surveillance of office buildings? The Administrative Court of Oldenburg had to decide on this matter.

The owner and manager of a multi-storey office building had installed video cameras in all stairwells on each floor, which automatically reacted to movements in the stairwell. The recordings were stored on a hard drive and deleted once there was no longer any need to review them, but in any case no later than 10 days after recording.

Since the supervisory authority did not find the owner's justification for the installation of the system sufficient, it called upon the building owner not only to switch off the video cameras, but also to deinstall them.

The building owner objected to this order by way of an action for annulment.

Court decision

The Administrative Court of Oldenburg decided in its Urteil vom 12.03.2013 – Az. 1 A 3850/12that the possible measures which the authority could take were exhaustively enumerated in the law; however, the removal of the hardware was not among them. Camera dummies could not be used for observation per se and would not interfere with the right to informational self-determination.

The supervisory authority might have been able to order the video cameras to be switched off. This would have resulted in a time-unlimited prohibition of video surveillance. As an assessment standard, the statutory requirements for video surveillance of publicly accessible spaces were initially applied. However, the applicability of these requirements was questionable in the present case because the spaces were not publicly accessible at all times. Anyone who remains in the owner's rooms outside of opening hours and office hours against the owner's apparent will commits trespass in most cases. Outside these hours, a room is not publicly accessible, and the owner may be more entitled to protect his property by means of video surveillance. The authority had not taken this into account; the order was therefore annulled.

Conclusion

Orders issued by data protection supervisory authorities should in any case be reviewed by a solicitor/barrister specialising in data protection law. Ideally, the specialist should be consulted as soon as official information requests are to be answered.