Video surveillance in a dental practice that can be entered without hindrance is subject to strict requirements regarding necessity under data protection law. This was decided by the Federal Administrative Court in Leipzig on 27 March 2019.
The plaintiff is a dentist. Her practice can be entered unhindered by opening the entrance door; the reception counter is not manned. The plaintiff has installed a video camera above this counter. The recorded images can be viewed in real time on monitors which the plaintiff has set up in treatment rooms (so-called camera-monitor system). The regional data protection commissioner ordered the plaintiff, among other things, to adjust the video camera in such a way that the area in front of the reception counter accessible to patients and other visitors, the corridor between the counter and the entrance door and the waiting room are no longer recorded. In this respect, the action brought 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, which has been directly applicable in all Member States of the European Union since 25 May 2018, does not apply to orders under data protection law which - as in the present case - were issued before that date. Decisions made before this effective date are not subsequently measured against this new body of EU law. Prior to 25 May 2018, the federal legislature had conclusively regulated the permissibility of observing publicly accessible spaces with optical-electronic devices (video surveillance) through section 6b of the Federal Data Protection Act (Bundesdatenschutzgesetz, old version), also for private operators. Pursuant to paragraph 1 of this provision, observation by a camera-monitor system, even without storage of the images, was subject to the condition that it was necessary to safeguard the legitimate interests of the private operator and that the interests of the data subjects worthy of protection were not overridden.
According to the binding findings of fact of the Higher Administrative Court, the plaintiff has already not shown that she is dependent on video surveillance for the operation of her practice. There are no factual indications that make her fear that persons could enter her practice to commit criminal offences there appear justified. The video surveillance is not necessary in order to be able to attend to patients in emergencies who are still sitting in the waiting room for some time after treatment for medical reasons. Finally, the plaintiff's statements that she would incur considerably higher costs without the video surveillance remained completely general.
Judgment of the Federal Administrative Court of 27 March 2019 - BVerwG 6 C 2.18-.
OVG Berlin-Brandenburg, 12 B 7.16 - Judgment of 06 April 2017 -
VG Potsdam, 9 K 725/13 - Judgment of 20 November 2015 -
Source: Press release of the BVerwG from 27.03.2019
GoldbergUllrich Attorneys at Law 2019