The surveillance of a customer in a grocery store by the supermarket operator is inadmissible if the purpose of the surveillance measure is not documented by the operator. This was ruled by the Stuttgart Higher Regional Court in its judgment of May 18, 2021, file reference 12 U 296/20.
Legal Infringement by Video Surveillance Systems in Grocery Stores
The defendant operates a supermarket. In 2018, the plaintiff was a customer at this supermarket. During his visit, the plaintiff was recorded by the video surveillance system. In his lawsuit, the plaintiff sought an injunction from the supermarket operator to cease the video surveillance. The supermarket operator attempted to justify the video surveillance by asserting that it served for hazard prevention and criminal prosecution. Additionally, the supermarket operator stated that he had only filmed specific areas of the supermarket to deter thieves and that the video surveillance system allowed him to save money by not having to employ security personnel.
Supermarket Operator Must Cease Video Surveillance
The Stuttgart Higher Regional Court ruled that the plaintiff is entitled to an injunction against the supermarket operator to cease video surveillance, pursuant to Sections 1004 (1) sentence 2, 823 (2) of the German Civil Code (BGB) in conjunction with Sections 4 of the German Federal Data Protection Act (BDSG) and Art. 6 (1) sentence 1 f of the GDPR.
Purpose and Necessity of Video Surveillance Must Be Demonstrated by the Operator
The court deemed the supermarket operator's argument that video surveillance was necessary to deter or detect thefts insufficient. While the prevention of impending threats to the supermarket operator's legal assets is generally a legitimate interest, it is imperative for the operator to specifically demonstrate that less intrusive measures, such as an alternative layout of the premises and goods, the installation of mirrors, and customer monitoring by existing sales personnel, are inadequate. Furthermore, this determination must be established at the commencement of the measure. Otherwise, a suitable purpose for video surveillance could always be 'fabricated' retrospectively. A mere declaration of purpose as 'for hazard prevention' or 'for criminal prosecution' does not fulfill this requirement. In accordance with the formal stipulation under Art. 30 (3) GDPR, the purpose must be documented in writing or electronically. The supermarket operator had failed to make such a prior determination.
No Claim for Damages for Non-Pecuniary Loss for the Plaintiff
The Stuttgart Higher Regional Court, however, denied the plaintiff's claim for damages for non-pecuniary loss in the amount of €1,000.00 against the defendant. It was not evident that the plaintiff had been significantly or severely harmed by the video surveillance.
What Does This Judgment Mean for Your Video Surveillance?
This judgment holds significant relevance for companies that secure their business premises with video surveillance systems. Firstly, it is imperative to ensure that your video surveillance is documented from its inception, and that the purpose and necessity of the surveillance measures are formally established in writing or electronically prior to the commencement of video surveillance. Failure to comply may result in warnings for data protection infringements.
GoldbergUllrich Rechtsanwälte PartG mbB is a law firm specializing in data protection law, industrial property rights, copyright and media law, and IT law. We would be pleased to assist you with the planning, implementation, and execution of your video surveillance. With our expertise, you can ensure compliance.
Source: Stuttgart Higher Regional Court, Judgment of august 19, 2020, file reference 12 U 296/20
GoldbergUllrich Attorneys at Law 2021
Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)
