CCTV, walking the thin line of protecting yourself or becoming a data processor.

CCTV, walking the thin line of protecting yourself or becoming a data processor.1)Copyright by Nïall Green under the Creative Commons Attribution-Share Alike 1.0 Generic

Having suffered several attacks, in which the windows of the family home had been broken on several occasions, by persons unknown, Mr Ryneš, a Czech citizen, installed a CCTV camera under the eaves of his home. In a fixed position, the camera recorded the entrance to his home, the public footpath and the entrance to the house opposite. The system allowed only a visual recording, which was stored on a hard disk drive. Reaching its full capacity, the device would record over the existing recording, erasing the old material. Although the images would not be monitored in real time, this video surveillance system made it possible to identify two suspects, who were subsequently prosecuted.

However, despite the happy outcome, the operation of this camera system, installed by an individual on his household, for the purposes of protecting the property, health and life of the owner and his family, raised some questions due to the continuous recording of a public space.

One of the suspects challenged the legality of Mr Ryneš recording of the images. The Czech Data Protection Authority (hereafter DPA) considered that this operation infringed data-protection rules because the data collection of persons moving along the street or entering the house opposite occurred lacked their consent; individuals were not informed of the processing of that personal data, the extent and purpose of that processing, by whom and by what means the personal data would be processed, or who would have access to the personal data; and this processing was reported to the Office as mandatory.

Mr Ryneš brought an action challenging that decision in court, which was dismissed. The case was appealed to the Czech Supreme Administrative Court which referred to the Court of Justice of the European Union (hereafter CJEU) for a preliminary ruling.

In this context, in its judgment in Case C-212/13, the CJEU addressed the application of the ‘household exception’, for the purposes of Article 3(2) of Directive 95/46/EC, which refers to the data processing carried out by a natural person in the course of a purely personal or household activity.

The CJEU considered that the image of a person recorded by a camera constitutes personal data within the meaning of the Directive 95/46 inasmuch as it makes it possible to identify the person concerned.

Moreover, the Court considered that video surveillance falls within the scope of the above mentioned directive in so far as it constitutes automatic processing, i.e., an operation which is performed upon personal data, such as collection, recording, storage.

Considering that the main goal of the this Directive is to guarantee a high level of protection of the fundamental rights and freedoms of natural persons, in particular their right to privacy, as foreseen in article 7 of the EU Charter of Fundamental Rights, the CJEU recalled that derogations and limitations must be strictly necessary.

Therefore, the Court deemed that the ‘household exception’ must be narrowly construed and applicable when the data processing activity is carried out ‘purely’ private and household context, even if it incidentally concerns the private life of other persons, such as correspondence and the keeping of address books.

In this context, the CJEU concluded as follows:

(…)the second indent of Article 3(2) of Directive 95/46 must be interpreted as meaning that the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, does not amount to the processing of data in the course of a purely personal or household activity, for the purposes of that provision.

However, Mr Ryneš’s concerns, which motivated the installation of the camera, were not overlooked by the CJEU. Indeed, the Court outlined that the Directive itself allows, where appropriate, to consider the legitimate interests pursued by the controller, such as the protection of the property, health and life of his family and himself. This reflection is in line with the Opinion of the Article 29 Working Party in this regard as security was mentioned as an example of a legitimate interest of the data controller.

This implies that, even if the household exception is not applicable in this very particular case, a CCTV camera recording activity such as the one in the proceedings is lawful in the light of article 7(f) of the Directive. Thus said, the referring Court will now have to take this interpretative guidance into consideration and decide if the recording and processing at stake were legitimate, for instance, in regards of article 10 of the instrument. It is possible that the Czech Court may still consider that because no information regarding the recording was provided to the public (individuals were not informed of the processing of that personal data, the extent and purpose of that processing, by whom and by what means the personal data would be processed, or who would have access to the personal data) and considering that this processing was not reported to the Office constitute a breach of the data protection rules.

This is particularly relevant considering that, precisely for security purposes, individuals are equipping their households with CCTV systems which capture public space. Only time will tell how this decision will be applied to individuals in practice. Most certainly, DPAs across the EU will update their recommendations regarding the weighing between the necessity of the recording and storing of the data to pursue an interest deemed legitimate and the interests for fundamental rights and freedoms of the data subject.

At this point, it is expectable that householders who have surveillance cameras that capture public space will need to ensure that their collection and further use of any footage which contains images of identifiable individuals complies with the data protection requirements. Thus, they will have, for instance, to at least inform people of this monitoring and ensure that no footage is illegally retained.

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1. Copyright by Nïall Green under the Creative Commons Attribution-Share Alike 1.0 Generic