Video Surveillance in Europe and Germany – Personality and Privacy Rights
General guidelines on video surveillance in Europe and Germany are found (in English) at the Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein in an article by Dr. Thilo Weichert entitled “Current Legal Issues on Video Surveillance”, a Contribution to the SECURITY Congress 2000, Oct. 9-12, 2000 in Essen.
Data Protection in Germany
See the commentary in English by the German Federal Data Protection Commissioner about the Federal Data Protection Act, Bundesdatenschutzgesetz (BDSG).
The “Dussmann” Video Surveillance Case in Germany
This case involved the collision of the right to privacy with the right to protect private property by video surveillance. It is the first such court decision in Germany. It is in some respects a hard case, and as the saying goes, hard cases often make bad law, and this is one example of that phenomenon.
At my request, Nils Leopold – thank you – on February 24, 2004
– see Humanistische Union e.V., Bundesgeschäftsführung, Rechtsanwalt Nils Leopold, LL.M., Greifswalder Str. 4, 10405 Berlin, Tel. 030-20450256, Fax 030-20450257 –
kindly sent me a copy of the decision of the County Court for Berlin Center (Amtsgericht Berlin-Mitte), Docket Nr. 16 C 427/02 (Geschäftsnummer 16 C 427/02), issued December 18, 2003 (verkündet am 18. Dezember 2003) on “Video Surveillance of Public Space” (Videoüberwachung Privater im öffentlichen Raum). Leopold writes that the decision is not yet legally in force since an appeal to the Berlin Landesgericht (Berlin District Court) will most likely be made.
The defendant in this civil suit is the Dussmann Beteiligungsgesellschaft mbH & Co. KG.
The name of the journalist who brought the action is unknown, because pursuant to common practice in German courts, in order to protect the plaintiff’s identity, his name has been made unreadable by the court in the publicly available copy of the court decision (the court merely blots out the name using black magic marker).
The “Dussmann” Case – Short Summary
The Berlin Center County Court found that the defendant’s video surveillance along commercial storefront display windows in an arcade passageway would not be permitted to extend more than one meter sideways or one meter upwards from the storefront display windows to be protected. Otherwise, the surveillance was found to impinge on the privacy rights of individuals in “public space”. The critical factual point in this case is that the video surveillance is located in a covered arcade passageway on property OWNED by the defendant and extending nearly to the street. Nevertheless, the court held that the fact that the property was private was not determinative since the defendant had dedicated the arcade passageway to use by the public (“durch Widmung zur Benutzung durch die Öffentlichkeit bestimmt”). The court held that the “right to privacy” in public places was more important that than the defendant’s right of video surveillance.
THE ARGUMENTATION of the PLAINTIFF
The journalist who brought the complaint frequently used the defendant’s privately owned but publicly accessible arcade passageway to go to and from work and felt hindered in his privacy personality rights by being subject to 24-hour video surveillance whenever he walked through the arcade (even though the videos are erased every 7 days), alleging that it was not a viable alternative that he use the other side of the street if the surveillance bothered him. He alleged a violation of his “basic right” (constitutional right) of personality as set out in Article 2(1) in conjunction with Article 1(1) of the Grundgesetz (Basic Law, German Constitution) as well as a violation of his personal rights pursuant to Section 823(1) of the BGB (Bundesgesetzbuch, German Civil Code).
I. Basic Rights
Article 1 [Human dignity]
(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
Article 2 [Personal freedoms]
(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.”
The court also refers to the general tort liability provision, § 823 I of the BGB, which is translated in a lecture by Prof. Dr. Heinrich Dörner of the University of Muenster Law School:
§ 823 I BGB provides: ” A person who, intentionally or negligently, and unlawfully injures the life, body, health, liberty, ownership or any other right of another person is bound to compensate him for any damage arising therefrom.”
“The judges [of the Federal Supreme Court (Bundesgerichtshof)] [have] explained that the protected right of the body in § 823 I BGB is the outflow of the general right of the personality that I mentioned before as one of the fundamental individual rights. This right is embodied in Article 2 I in connection with Article 1 of the German Basic Law (Grundgesetz) and includes the right to self-determination.
THE LEGAL ARGUMENT of the DEFENDANT
The defendant answered that video surveillance was permitted by §6(b)(1) of the BDSG (Bundesdatenschutzgesetz, Federal Data Protection Act, also known as the Privacy Act) for protection of one’s own property (Hausrecht) or for the protection of other justifiable interests for specifically declared purposes. The defendant argued that the video surveillance in the arcade passageway protected against shoplifting, attacks on customers, purse-snatching, graffiti-painting and damage to storefront window panes by scratching.
THE HOLDING of the BERLIN CENTER COUNTY COURT
The Berlin Center County Court held that §§ 823 and 1004 of the German Civil Code protect the individual’s general right to privacy.
The Court further pointed to §6(b)(1) of the BDSG (Bundesdatenschutzgesetz, Federal Data Protection Act, also known as the Privacy Act) which provides that surveillance by optical electronic devices (video surveillance) is only permitted for protection of one’s own property (Hausrecht) or for the protection of other justifiable interests for specifically declared purposes, provided, however, that the surveillance does not infringe on the protected rights of others.
The Court held that the privacy rights of the individual plaintiff were more important than the rights to surveillance by the defendant in an area which had been declared open to public access by the defendant and where surveillance was of a general around-the-clock nature.
The Court held that video surveillance was limited in such areas of public access and that this included public streets, sidewalks and arcade passageways.
The Law Pundit Opinion on this Decision
In the opinion of the Law Pundit, this is a bad decision as a matter of law and will hopefully be reversed upon appeal. The limitation of video surveillance to one meter in an arcade passageway is not only impractical but legally unsound. Someone could throw rocks through storefront picture windows from two meters away and never be caught by the camera, whose protective function would be unnecessarily hampered. What personality right is there in law that anyone has the “privacy right” to move “publicly” incognito? This sounds like a wonderland for criminals and terrorists. By this ill-designed standard, a house owner could not have video surveillance of cars parked on the street in front of his house, even if these contained potential criminals, because they would be “too far away” in a public place. Indeed, he could not even keep track by video of the public sidewalk in front of his home for possible intruders. Indeed, possible lawbreakers “casing the joint” from a “safe” distance would be immune from surveillance. This is not the kind of legal precedent that is of any use for anyone.
The notion that there is a right to “privacy” in “public places” turns the doctrine of privacy on its head. Heretofore it appeared that the right of privacy applied to “private” places. Now it is to be extended to public places and indeed, public commercial places. This means that people want their cake and eat it too – they want all the advantages of being “in public” which their private sphere does not provide for them, but they want to be “privately” protected in public. My own answer here is “no”. The need for protection of life and property in commercial and public areas far overrides the individual’s personality rights in commercial and public places. The Berlin Center County Court has decided here for the individual, whereas it is the right of society to peace, law and order in public places which is paramount.
It is time that these overbroad concepts of individual personality and privacy rights be stopped in their tracks. Society too has rights. The law-abiding citizen is not threatened by video surveillance. The criminal is. Obviously, some “reasonable” standard which draws a balance between individual rights on the one hand and protective rights for all on the other must be drawn. But the standard can not be the one-sided decision handed down by the Berlin Center County Court.