June 25, 2019

June 25, 2019

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June 24, 2019

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Video Surveillance in German Public Areas – Lawful or Not?

After the brutal terror attacks in German cities of Berlin and Ansbach and the rampage in Munich last year, the German Government intends to allow video surveillance in public areas.

Therefore, the German Government has presented a draft law that facilitates video surveillance for private operators of public areas and public events. More precisely, the Federal Data Protection Law will be amended to introduce a legal basis for video surveillance. According to the draft law, the protection of life, health and freedom shall be regarded as a “particularly important public interest” that allows video surveillance. Private operators will not be obliged to install cameras. However, the government hopes that they will make more use of them.

Assuming the draft law does come into force, the new legal basis for video surveillance may also be applicable after May 2018, when the EU General Data Protection Regulation (GDPR) becomes enforceable. The GDPR contains flexibility clauses that allow Member States to maintain or introduce more specific provisions in certain circumstances.

The German Association of Judges considers that the draft law conflicts with the German Constitution. The Association’s view is that the law would conflict with the fundamental right of informational self-determination. This fundamental right is also embodied in the fundamental right of human dignity and any limitation of the right of informational self-determination requires a legal basis that is sufficiently precise and clear. The Association also considers that the draft law does not meet the requirements around the prohibition of excessive measures. The majority of people observed by video surveillance in public areas are not given a reason for the surveillance. The Association’s view is that a feeling of being observed constitutes a breach of the fundamental rights of informational self-determination/human dignity. The Association is also of the opinion that public safety and security is a core function of the state and not of private companies.

There is concern that the introduction of video surveillance will lead to a heightened sense of being observed among the German public. It is doubtful whether that will actually happen given that most public areas are already observed by thousands of private mobile cameras. More generally, the likely effectiveness of video surveillance is questionable.  Will cameras be effective in deterring terrorist attacks?  Cameras are likely to be most useful in capturing images that will allow suspected terrorists to be apprehended and so, arguably, video surveillance serves the investigation of criminal offences only. In addition, many people would agree that public safety and security is a fundamental task of the State and that this should not be transferred to the private sector.  In light of this, perhaps the proposed amendments to the Federal Data Protection Law are inappropriate?

In the German context, the reinforcement of video surveillance poses problems with the fundamental right of the supervised persons. However, the recent disasters show the very real risk of terrorist atrocities in public areas. Whether video surveillance will be an effective solution remains to be seen.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Associate

Christina Schattauer is an associate in our Intellectual Property & Technology Practice Group based in Berlin. She specialises in trade mark, design and copyright law, media and unfair competition law. Furthermore, she advises national and international businesses in privacy, technology and telecommunications law.

Christina served her legal clerkship at the Higher Regional Court (Kammergericht) of Berlin with stations at a boutique IP law firm in Berlin and an IP law firm in Sydney, Australia. Prior to joining the firm she...

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Annette Demmel, Information Technology Attorney, Squire Patton Boggs Law Firm
Partner

Dr. Annette Demmel is a partner in our Data Privacy & Cybersecurity Practice Group in Berlin. For 20 years, Annette has advised national and international businesses in privacy law, technology law, telecommunications law, intellectual property law, media law and competition law.

In particular, she leads the implementation of privacy compliance programs and centralized software systems, and provides advice on policy and regulatory issues arising in the electronic communications and internet sectors. Annette also advises clients on legal issues relating to profiling and online marketing business models.

She often acts as an external data protection officer. She also represents our clients in both in court and out-of-court disputes, often in matters involving cross-country issues.

  • Advising a multinational company on the outsourcing of the group IT services; negotiations with local Works Councils regarding privacy and co-determination rights with regard to cloud services and centrally managed solutions.
  • Project management for a multinational company on the implementation of privacy compliance solutions involving newly acquired companies in 20+ countries.
  • Advising a major international advertising holding on business models based on profiling and behavioral targeting.
  • Implementing cloud-based HR solutions in various international groups in more than 40 countries; leading negotiations with local data protection authorities and Works Councils.
  • Providing ongoing monitoring and analysis for a global communications provider, covering a broad range of telecommunications regulatory and competition law issues, including BNetzA market reviews and implementation of SMP obligations, abuse of dominance proceedings, spectrum policy, net neutrality and e-privacy.
  • Advising a US-based marketing company with one of the world’s largest databases for consumer marketing on data protection and serving as an external data protection officer for their German enterprise.
  • Advising an international electronics group on legal aspects of data security and data breaches.
  • Moderating roundtable discussions for the social media strategy and implementation in one of the world's best-known companies.
  • Structuring innovative e-business and entertainment platforms, and advising on internet-related data protection issues.
  • Defending an architect's copyright on a striking, contemporary building in Germany.
  • Representing a former state-owned company in several judicial IT legal matters.
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