Video surveillance requires prior justification and documentation

The observation of a customer in a grocery shop by the supermarket operator is inadmissible if the purpose of the surveillance measure is not documented by the operator. This was decided by the Higher Regional Court of Stuttgart in its judgement of 18.05.2021, case number 12 U 296/20.

Infringement of rights by video surveillance equipment in a grocery shop

The defendant operates a supermarket. The plaintiff was a customer at the supermarket in 2018. When visiting the supermarket, the plaintiff was recorded by the video surveillance system. In his lawsuit, the plaintiff sought an injunction from the supermarket operator to stop the video surveillance. The supermarket operator tried to justify the video surveillance on the grounds that it served to avert danger and to prosecute offenders. In addition, the supermarket operator stated that he only filmed certain areas of the supermarket in order to deter thieves and to save money by using the video surveillance system, as he did not have to employ security staff.

Supermarket operator must refrain from video surveillance

The Higher Regional Court of Stuttgart ruled that the plaintiff was entitled to a claim against the supermarket operator for injunctive relief from video surveillance pursuant to §§ 1004 para. 1 sentence 2, 823 para. 2 BGB in conjunction with §§ 4 BDSG, Art. 6 para. 1 sentence 1 f DSGVO.

Purpose and necessity of video surveillance must be explained by the operator

The court did not accept the supermarket operator's argument that the video surveillance was necessary to deter thieves or detect thefts. It was true that the defence against imminent danger to the legal interests of the supermarket operator was in principle a legitimate interest. However, it was necessary for the supermarket operator to specifically demonstrate that less drastic measures, such as a different division of the space and the goods as well as the installation of mirrors and monitoring of the customers by the existing sales staff, would not be sufficient. The determination must also be made at the beginning of the measure. Otherwise, the appropriate purpose for the video surveillance could always be "constructed" afterwards. A mere listing of the purpose as "to avert danger" or "for law enforcement" does not satisfy this requirement. In accordance with the formal requirement under Article 30 (3) of the GDPR, the purpose must be set out in writing or electronically. Such a prior specification by the supermarket operator had not taken place.

No claim for compensation for pain and suffering for the plaintiff

However, the OLG Stuttgart denied the plaintiff's claim for damages for pain and suffering in the amount of € 1,000.00 against the defendant. It was not evident that the plaintiff had been harmed in a significant or even serious way by the video surveillance.

What does the ruling mean for your video surveillance?

The ruling is highly relevant for companies that secure business premises with video surveillance systems. First of all, you must ensure that you document your video surveillance right from the start and determine the purpose and necessity of the surveillance measures in writing or electronically before the video surveillance begins. Otherwise, you will be threatened with warnings for data protection violations.

GoldbergUllrich Rechtsanwälte PartG mbB is a law firm specialising in data protection law, intellectual property law, copyright and media law and IT law. We are also happy to assist you with the planning, introduction and implementation of your video surveillance. With us, you are on the safe side.

Source: OLG Stuttgart, judgement of 19.8.2020, file number 12 U 296/20

GoldbergUllrich Lawyers 2021

Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)