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Germany/ Federal Administrative Court/ 6 C 2/18

Unknown dentist v. Commissioner for Data Protection and the Right of Access to Documents of the State of Brandenburg

Deciding Body type:
National Court/Tribunal
Deciding Body:
Federal Administrative Court
Decision date:
27/03/2019

Key facts of the case:

The plaintiff is a dentist. Her medical practice could be entered unhindered by opening the entrance door; the reception desk was not occupied by staff. Therefore the plaintiff had installed a video camera above this counter, and the images transferred from the camera could be viewed in real time on monitors the plaintiff had set up in her treatment rooms (so-called camera-monitor system). In 2012, the plaintiff was ordered by the Brandenburg Data Protection Commissioner to align the video camera in such a way that the area in front of the reception desk, the corridor between the counter and the entrance door and the waiting room accessible to patients and other visitors were no longer covered. The dentist legally challenged the Data Protection Commissioner’s order but was not successful in the lower courts.

Key legal question:

In its decision, the Federal Administrative Court examined the question which data protection law (German Federal Data Protection Act or EU General Data Protection Regulation) was applicable to assess the legality of the State Data Protection Commissioner’s order. Furthermore, it had to clarify whether the camera-monitor-system to surveille the areas of the medical practice that were accessible to visitors fell under the scope of Section 6b of the Federal Data Protection Act (old version) and whether this provision permitted surveillance for the purpose of protecting the premise of the plaintiff.

Outcome of the case:

The Federal Administrative Court decided that the General Data Protection Regulation, which is directly applicable in all EU member states since 25 May 2018, does not apply to data protection orders issued – as in the present case – before this date. Decisions taken before this date are not to be measured against new EU legislation subsequently. Before 25 May 2018, the federal legislator had conclusively regulated the admissibility of private surveillance of publicly accessible areas by optical-electronic equipment (video surveillance) through Section 6b of the Federal Data Protection Act (old version). According to paragraph 1 of this provision, mere monitoring through a camera-monitor system, even without storing the images, requires that it is necessary to safeguard the legitimate interests of the private individual and that the interests of the persons concerned worthy of protection do not predominate. According to the binding factual findings of a lower instance, the plaintiff had so far not shown that she is dependent on video surveillance for the operation of her practice. There were no factual indications justifying her fear that persons might enter her practice in order to commit crimes there. Moreover, video surveillance was not found being necessary to provide emergency care to patients who, for medical reasons, remain in the waiting room for some time after treatment. Lastly, the plaintiff's claim that she would have to bear considerably higher costs without video surveillance remained unsubstantiated. The court, however, discussed in a remark “said in passing” (obiter dictum) the admissibility of private video surveillance under the GDPR.