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Legal Useability of Recordings from Open Video Surveillance

By its decision of 23 August 2018 the Federal Labor Court (docket number 2 AZR 133/18) facilitated video surveillance at the workplace. Legally and openly created recordings do not have to be deleted by the employer within a few days. According to the Federal Labor Court, they can be evaluated several months later.

Under data protection law employers are in principle entitled to use video cameras to publicly monitor accessible sales areas in order to protect themselves against criminal offences. The purpose of such video surveillance does not have to be exclusively to prevent crimes committed by customers. Rather, the employer can also pursue the purpose of protecting himself from criminal offences committed by employees. In such cases, video surveillance must be disclosed or made visible, usually by information signs. In addition, the employer must delete the video material as soon as possible. Section 4 para. 5 of the Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) states that data shall be deleted immediately if it is no longer necessary to achieve the purpose or if legitimate interests of the parties concerned are affected.

In the particular case, the plaintiff worked in a small shop with open video surveillance installed by the defendant. According to the defendant, a shortage of tobacco products was found in the third quarter of 2016. A random analysis of the video recordings conducted in August 2016 had shown that the plaintiff had not deposited the funds collected on two days in February 2016 in the cash register. Therefore, the defendant terminated the employment relationship for good cause. The affected employee succeeded before the local labor court with her claim for wrongful dismissal. Also the Labor Court of Appeal in Hamm (docket number 2 Sa 192/17) ruled that the findings from the video surveillance were subject to a prohibition on exploitation due to Section 4 para. 5 of the BDSG, as the defendant should have deleted the video sequences immediately, in any case at least before 1 August 2016.

The Federal Labor Court surprisingly overruled the decision and made quite a turnaround compared to earlier decisions with similar situations where usually, as a rule of thumb, material was to be deleted after the expiration of 1-2 days due to the legal principle of data economy.

According to the Federal Labor Court, the storage of video sequences from a legitimate open video surveillance showing intentional actions of an employee to the detriment of the employer’s property is allowed, as long as punishment for the breach of duty is possible under employment law. In particular, the defendant was not obliged to analyze the surveillance material immediately. He was allowed to wait until he saw a valid reason to do so. The analysis of the video material conducted approximately six months after the recording did not conflict with Section 4 para. 5 of the Federal Data Protection Act and therefore did also not conflict with the general right of privacy of the employee protected by Article 2 para.1 in conjunction with Article 1 para. 1 of the German Constitutional Law (Grundgesetz, GG).