Video surveillance in a dental practice that can be entered unhindered is subject to strict requirements regarding data protection necessity. This was decided by the Federal Administrative Court in Leipzig on March 27, 2019.
The plaintiff is a dentist. Her practice can be entered unhindered by opening the entrance door; the reception desk is not staffed. The plaintiff has installed a video camera above this desk. The recorded images can be viewed in real-time on monitors that the plaintiff has set up in treatment rooms (a so-called camera-monitor system). The defendant State Data Protection Commissioner, among other things, instructed the plaintiff to align the video camera in such a way that the area accessible to patients and other visitors in front of the reception desk, the corridor between the desk and the entrance door, and the waiting room are no longer captured. In this respect, the action filed after an unsuccessful objection remained unsuccessful in the lower courts.
The Federal Administrative Court dismissed the plaintiff's appeal for essentially the following reasons: The General Data Protection Regulation (GDPR), directly applicable in all Member States of the European Union since May 25, 2018, does not apply to data protection orders that – as in the present case – were issued before this date. Decisions made before this cut-off date are not subsequently measured against this new Union legal framework. Prior to May 25, 2018, the federal legislator had conclusively regulated the admissibility of monitoring publicly accessible areas with opto-electronic devices (video surveillance) for private operators through Section 6b of the Federal Data Protection Act (old version). According to paragraph 1 of this provision, monitoring by a camera-monitor system, even without storing images, required that it be necessary for safeguarding the legitimate interests of the private entity and that the legitimate interests of the data subjects do not outweigh them.
According to the binding factual findings of the Higher Administrative Court, the plaintiff has failed to demonstrate that she relies on video surveillance for the operation of her practice. There are no factual indications that justify her concern that individuals might enter her practice to commit criminal offenses. Video surveillance is not necessary to provide care for patients in emergencies who remain in the waiting room for some time after treatment due to medical reasons. Finally, the plaintiff's claims that she would incur significantly higher costs without video surveillance remained entirely unsubstantiated.
Judgment of the Federal Administrative Court of March 27, 2019 – BVerwG 6 C 2.18-
Lower Courts:
Higher Administrative Court Berlin-Brandenburg, 12 B 7.16 – Judgment of April 06, 2017 –
Administrative Court Potsdam, 9 K 725/13 – Judgment of november 20, 2015 –
Source: Press release of the Federal Administrative Court of March 27, 2019
GoldbergUllrich Attorneys at Law 2019
