What is the need for video surveillance
Surveillance cameras in the home
In the public sector they are almost standard, in stationary facilities they are becoming more and more common: surveillance cameras.
The technology is making such rapid advances that the little "security helpers" are hardly noticeable any more. Who knows that they are being filmed at every ATM?
Surveillance apparatus may be justified in averting danger. In institutions, for example, they can support staff in looking after people at risk of running away. But there are also private, intimate areas in which the individual has to remain alone and unobserved. How can surveillance cameras be used there? Is it even permissible? These and other questions about surveillance and privacy should be clarified here.
What is video surveillance?
Video surveillance falls into the area of data protection. The Federal Data Protection Act (BDSG) defines video surveillance as "observation of publicly accessible rooms with opto-electronic facilities" (Section 6b (1) BDSG). The question of data protection does not only arise when images are recorded or stored, but as soon as technical devices make it possible for people to actually observe them.
The monitoring starts with the installation of cameras, even if the devices only record when necessary or in the event of an alarm or if they are used for mere observation, as is usually the case in the facilities!
Why should a surveillance camera bother me?
Many people value the supposed security gain through video surveillance higher than their own personal rights. “I have nothing to hide,” some think, and when you watch some programs on television you get the impression that people's shame line is very low - if it still exists at all.
But who would like to be filmed while picking their nose or having an argument with their companion? Video cameras watch us in many places. Some do not even think about the surveillance eye, but others adapt their behavior to the surveillance situation.
The same applies to residential and care facilities. If the relatives are visiting, arguments can arise. There are also romantic moments in facilities that have to remain unsupervised. The areas in which falls are most likely to occur - in the bathroom and toilet - are also those with the greatest potential for shampoo.
It has been scientifically proven that people no longer behave freely and independently when they think they are being watched by a camera, even if this is a dummy.
Wherever surveillance technology has an effective benefit, it may be justified. But it must not be used carelessly in the interests of people's privacy. To ensure this, the data protection regulations applicable to video surveillance must be observed.
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What are the principles for the admissibility of video surveillance?
In principle, video surveillance is possible everywhere, but only permitted under very specific conditions. There must always be a balance between the protective purpose on the one hand and the right to “informational self-determination” derived from human dignity on the other.
This right is an umbrella term for what also includes the right to one's own image. The right to informational self-determination is defined as “the power of the individual to determine for himself who knows what, when and on what occasion”. In the computer age, this right includes the protection of individuals against unlimited collection, storage, use and disclosure of their personal data. In principle, the data subject should decide for himself how his personal data are disclosed and used. ("My data is mine!")
Under what conditions is surveillance by video cameras permitted in facilities?
The BDSG stipulates in § 6b for publicly accessible rooms:
Video surveillance is only permitted insofar as it is
1. to fulfill the tasks of public bodies,
2. to exercise house rights or
3. to safeguard legitimate interests for specifically defined purposes
is necessary and there are no indications that the interests of the data subjects worthy of protection prevail.
Publicly accessible rooms are areas inside or outside of buildings that can be entered freely or according to general requirements (e.g. with an admission ticket). These include station halls, platforms, petrol stations, public areas of banks, cafés, sales rooms in a department store, hotel foyers, museums and cinemas after purchasing a ticket.
Publicly accessible communal areas of large residential complexes such as entrances or paths between buildings can be such areas if the authorized persons want to make them recognizable to the general public. In homes, this could e.g. apply to the entrance area or the inner courtyard, the garden, etc.
However, this does not mean that video surveillance is unrestrictedly permitted in publicly accessible rooms. The human right to informational self-determination applies everywhere, not only in the private sphere. Video surveillance can therefore mean violations of general principles of data protection and result in civil law defense claims.
In contrast, there are areas that are only accessible to very specific groups of people. These are either marked as such (e.g. company or factory premises that are fenced or identified by signs) or, due to generally accepted customs, it is known that they are not generally accessible (e.g. private, unfenced front garden).
As a rule, it cannot be assumed that the entrance areas of purely residential buildings are open to the public because only residents and visitors have access rights. This also applies to building entrance doors that are not locked.
The private area of a facility, which is clearly reserved for certain people, such as the living area of a residential group of a facility, corridors, stairwells, etc., is therefore not "publicly accessible" within the meaning of Section 6b BDSG, as is the private living space of the residents Residents.
For rooms that are not open to the public (entrance areas, stairs, corridors, living areas, common rooms), the relationship between means and ends and the weighing of the interests of those involved (supervisors and those affected) are also important. This results from the general principles of data protection and the case law of the Federal Constitutional Court.
There are essentially three criteria to be checked:
The video surveillance must serve the maintenance of house rules or another legitimate interest for specifically defined purposes, see § 28 BDSG. A legitimate interest can be of a non-material, economic and legal nature. Protection against thieves can just as much justify video surveillance as avoiding vandalism and preventing other criminal offenses. The interest can also consist in being able to prove the aforementioned violations in court. The specific purpose of the monitoring must have been specified in writing beforehand.
For inpatient facilities this means: The protection of residents with dementia, for example, can be a legally permissible purpose. The operators must present this purpose in writing. The advisory board and supervisory authority are to be involved in this process.
Video surveillance is only necessary if the specified goal can only be achieved through surveillance and there is no less drastic means of doing this. In individual cases, less stressful options must therefore be checked for their suitability, such as regular or frequent inspections by the staff. In this context, it should also be checked whether a comprehensive introduction of the surveillance technology is necessary or whether it is sufficient to use it at certain focal points at certain times. When examining the feature of necessity, economic considerations are irrelevant.
c) Weighing of interests
A required video surveillance is nevertheless not permitted if the persons concerned have an interest worthy of protection which is to be valued higher than the achievement of the purpose pursued with the observation. An interest worthy of protection of the persons concerned is usually given due to the constitutionally guaranteed right of personality. This includes both the right to the protection of privacy and privacy as well as the right to one's own image that is affected by video surveillance.
The interests worthy of protection almost always predominate when the privacy is violated. The monitoring of toilets or changing rooms is therefore not permitted, as is the monitoring of living spaces. Only in special exceptional cases, e.g. in the case of danger to life and limb, can limited monitoring be permitted (e.g. with filters on which you cannot see any details, only whether someone has fallen). Before doing this, however, a detailed weighing of interests must be carried out (see below). If there are less drastic means, e.g. emergency call systems, sensor mats, etc., video surveillance is not permitted.
The interests worthy of protection usually outweigh where the development of the personality is of essential importance, e.g. in cafeterias, common rooms where people communicate, eat, drink or relax. As a rule, they do not predominate if such activities are not in the foreground, such as in entrance areas or on driveways.
When weighing up interests, it must also be taken into account whether it is a permanent and comprehensive video surveillance which those affected cannot avoid. This interferes more strongly with the general right of personality than an occasional or selective monitoring. The consequence of this can be the establishment of unmonitored zones in monitored areas.
In residential and care facilities, one must therefore carefully check where and when the monitoring should take place and who could be affected (e.g. residents, visitors, staff).
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What measures must the operator take before setting up video surveillance?
If an operator has already dealt with the mentioned points of purpose, necessity and balancing of interests and has come to the conclusion to set up video surveillance, he should consider the following additional steps:
Informing those involved and affected
Before installing a monitoring system, the operator should inform the residents, i.e. also their supervisors, authorized representatives and interest representatives - i.e. the advisory board - in writing about the project so that any objections can be dealt with and taken into account.
A written consent is desirable, but not the only decisive factor. The monitoring measure must always be subjected to the above-mentioned weighing of interests. Of course, consent plays a decisive role, but not the only one. Other people could also be affected or the consent could be based on incorrect information or ideas. In addition, consent can be freely revoked at any time.
Documentation obligation, prior checking and company data protection officer
Before the video surveillance begins, the purpose of the surveillance must be specified in writing. This must be done by the responsible body at the latest in the context of the prior check (see § 4d paragraph 5 BDSG). Prior checking is regularly necessary because video surveillance is associated with particular dangers for the privacy rights of those affected. In larger companies, it must be carried out and documented by a company data protection officer.
If more than 9 people are constantly entrusted with data processing in a facility or at a carrier, they must also appoint a data protection officer (see § 4f. BDSG). In most institutions, however, this is unlikely to be the case, more likely with nationwide agencies.
The video surveillance and the contact person are to be made recognizable by suitable measures according to § 6b Abs. 2 Bundesdatenschutzgesetz (BDSG). The notice must be clearly recognizable and easily perceptible before entering the monitored area, so that a free decision for or against entering is possible. Whether a sign with the text: "Warning, video surveillance here" or a clear camera symbol is chosen is optional.
A reference to the responsible body is always required, apart from a few exceptional cases. In any case, those affected must be able to identify without a doubt who to turn to for video surveillance. An explicit reference to the responsible office can therefore be dispensed with in a home or facility if - as in many residential and care facilities - the contact persons are named in the entrance area.
The law does not require any indication of whether the recordings will be saved. Nevertheless, a corresponding note would be desirable.
Data economy, anonymization and pseudonymization
The principle of data economy can be found as a new instrument in modern data protection laws. At the federal level, too, this should be binding for all private bodies via Section 3a BDSG. It obliges the operators of video systems when designing and selecting them to ensure that as little personal data as possible is generated when they are used. In particular, the option of anonymization and pseudonymization (§ 3 Paragraph 6, 6a BDSG) must be used, insofar as this is possible and the effort is in reasonable proportion to the intended protection purpose.
A method that only captures images when triggered by a light barrier, for example, is preferable to continuous observation. Systems with purely overview recordings, which require a self-triggered zoom and recording process for the personal recording, have priority over systems that work with permanent enlargements. Monitor systems that provide for a concealment of areas that are not security-relevant and frequented by people are more data protection-friendly than those that deliver high-resolution, all-round sharp images. Many interesting technical developments are conceivable that limit the risks of video surveillance for personal rights.
The administrative court in Minden suggested the following settlement in a procedure in which an operator of a facility and the responsible home supervisor disputed the use of video cameras (Az. 6 K 552/06, settlement dated October 31, 2006):
Video surveillance is permitted to protect residents, but with the following restrictions:
It only extends to less sensitive areas such as entrances, corridors, stairwells (and not e.g. to the lounge).
The recordings are not saved for longer than 72 hours.
Note: The case law of the Federal Constitutional Court shows that it is not the data subjects or the data protection officers who have to prove the inadmissibility of a video surveillance measure, but the operators of the systems have the burden of proof for the necessity of any interference with people's rights.
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What rights do I have as a data subject?
right of providing information
According to Section 34 (1) BDSG, a person concerned can request information about the data stored about him or her, the recipient and the purpose. This also applies to the data storage of video images. For practical reasons, the provision of information by showing the respective sequence is the preferred option for video recording.
The right to object to the collection, storage and use of data - including images - complements the approval criterion. Even if you have consented to video surveillance, you can freely revoke it at any time. The right of objection is expressly regulated in Section 20 BDSG.
Correction, deletion and blocking
An objection only makes sense if the data-collecting body can also be forced to correct or even delete or block the data (if, for example, this does not conflict with statutory retention requirements). Section 35 BDSG contains these data subject rights in the event that data is collected by non-public bodies, e.g. by the home operator. In the case of municipal institutions, § 20 BDSG applies with the corresponding rights and obligations.
However, these rights may be restricted if there are special circumstances and a balance of interests shows that other legal interests take precedence.
Example: Theft can be seen on the video recordings. The corresponding records may be handed over to the police for investigative purposes. If a resident can also be recognized in the pictures, he must be patient with the deletion until the investigation has been completed and the material is no longer needed.
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How long can the recordings be saved?
If recording is made, the video material must be deleted (immediately) after the purpose of the recording has been achieved without undue delay (see Section 6b (5) and Section 35 BDSG). It makes the most sense to automatically make the video material unrecognizable, for example by overwriting previous recordings.
Video recordings to prove theft are no longer required if no theft has been detected. The recordings made one day for the general fight against crime should be checked and transferred if possible the next day, but at the latest after the expiry of two further working days.
If images (and sounds) should be recorded at all in facilities, these must be deleted immediately when there is no longer any danger. See also the comparison before the Minden Administrative Court above.
Example: Video cameras are installed in the corridors and in the entrance area to protect so-called "wanderers". After carefully weighing up the interests - especially with the interests of the other residents and visitors - the facility provider comes to the conclusion that the recordings should be stored for a maximum of 24 hours. By then, the nursing staff should have noticed whether a person in need of protection is leaving unnoticed.
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What applies to other forms of surveillance?
For such surveillance measures, Section 201 (violation of the confidentiality of the word) in the Criminal Code (StGB) contains a regulation that forbids recording or intercepting the non-publicly spoken word, even under threat of punishment!
If picture and sound are recorded together, the technical monitoring is of a special quality; there is a greater so-called "depth of engagement". There are various regulations for the area of the non-publicly spoken word, e.g. in a private apartment (see e.g. § 201 StGB; Art. 13 Paragraph 3-6 GG).
In practice, sound recordings have so far been rare. As technology advances, this will undoubtedly change. At night, a microphone could be installed in addition to the camera in facilities to protect residents. More and more technical aids also have voice control, i.e. the ability to record voices and noises.
What can I legally do against video surveillance?
In addition to the claims for advance information, notification, information and deletion mentioned in the BDSG, which were described in more detail above, there may also be claims for damages (Section 7 BDSG, Section 823 BGB) and omission (Section 1004 BGB).
Since the right to one's own image or the general personal right is a subjective right protected according to § 823 BGB, unlawful and at least negligent violations can trigger a claim for damages. In the case of serious injuries, compensation for immaterial damage, so-called compensation for pain and suffering according to Section 847 of the German Civil Code (BGB), may also be considered. However, a prerequisite is always a reproachable violation, which has to be proven in each individual case.
According to Section 1004 of the German Civil Code (BGB), an injured party or potentially impaired party is entitled to removal and injunctive relief. The injunction is to stop the further creation of video images. The elimination claim aims at the destruction of stored images.
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Who can I contact with my questions about video surveillance?
The primary contact for questions about data protection are the data protection officers (according to the data protection laws of the federal and state governments).
If there is a data protection officer in the facility, he should also be involved, as well as the advisory board, which is the right contact point for all concerns of the residents.
There is a rough distribution of tasks among the various data protection officers:
You should contact the data protection facility that also controls the data processing facility - in this case the facility or the facility provider:
- If the house has a public agency, the data protection officer of the federal government or the data protection officer of the federal states are responsible.
- If the carrier is organized under private law, the data protection officers of the federal states are usually responsible.
- The data protection officers of the Protestant and Catholic Churches are responsible for monitoring the processing of personal data by church institutions.
Tip: First of all, the data protection officer will help "on site", i.e. the state data protection officer. She / he also helps to find the right contact person. The individual data protection authorities can be found in the appendix of our detailed brochure on surveillance in homes. You can of course also contact BIVA at any time!
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Sergey Nivens / Fotolia.com
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