The topic of video surveillance plays a recurring role in the context of data protection law. An inquiry from a kindergarten in Thuringia to the relevant data protection commissioner as to whether the installation of cameras on the outdoor premises for video surveillance is permissible can be used to illustrate the necessary examination steps.
The case: kindergarten wants to install cameras
In its Activity report for the year 2021 the Thuringian State Commissioner for Data Protection and Freedom of Information reports on the inquiry of a kindergarten on the subject of video surveillance (No. 2.14.).
The kindergarten considered this measure for the safety of the children. It had happened more often that strangers entered the premises who did not want to bring or pick up a child (salesman, mailman, etc.). It had also happened that children had left the premises unnoticed. Therefore, cameras should be installed at a new gate for video surveillance.
Data protection audit
If the data subjects are children, the special protection must be taken into account: Recital 38 of the GDPR addresses this and justifies it by stating that children are less aware of the risks, consequences and their rights when processing personal data.
It should also be noted that the kindergarten is a public body. Accordingly, it cannot invoke a legitimate interest pursuant to Art. 6 I 1 lit. f DSGVO. Instead, a lawfulness of the video surveillance could result from Art. 6 I 1 lit. e DSGVO, if it were necessary for the performance of a task that is in the public interest or in the exercise of official authority. The specific legal basis required would be Section 30 of the Thuringian Data Protection Act. According to this, video surveillance is permissible if it serves to protect children and employees or other visitors and is necessary for the tasks of the kindergarten.
Accordingly, just as with any other video surveillance, an audit must be conducted in the following steps.
Step 1: Purpose and form of video surveillance
In which form video surveillance is even considered depends on the corresponding purpose. The kindergarten wanted to set up video surveillance in the form of video recording to guarantee the safety of the children.
Video surveillance can basically take the form of video recording or video observation. In the case of video recording, the camera stores the recorded images, which are subsequently viewed by a person when an incident has occurred. In the case of video observation, the cameras are only used to transmit a live image to a monitor so that a human can intervene based on depicted events.
The State Data Protection Commissioner was critical of video recording in this case because it did not serve the stated purpose. Video recording does not make it possible to react immediately to possible security risks. Accordingly, the measure is not suitable for preventing children from leaving the premises or unauthorized persons from entering the premises.
Step 2: Necessity of video surveillance
In a next step, the necessity of video surveillance must be examined. It is necessary if there is no equally suitable, milder means of achieving the stated purpose.
In the case at hand, the State Data Protection Commissioner determined that there are several milder remedies: The mailbox can be placed outside the gate so that mailmen no longer have to enter the premises. The gate's locking system can be improved and also equipped with a bell system with intercom.
Based on this consultation, the kindergarten decided to first consider milder means and refrain from video surveillance.
Even if not all video surveillance is immediately impermissible under data protection law, it cannot be carried out without further ado. In any case, the suitability and milder means must be examined beforehand.
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