On 6 September 2019, the
European Data Protection Board (“EDPB“)
completed its public consultation on the document containing the draft of the
forthcoming Guidelines 3/2019 concerning
video surveillance (“Guidelines
3/2019 on processing of personal data through video devices“).
The images and audio tracks
that are processed through the use of video surveillance systems, fall under
the definition of “personal data” as they enable individuals to be
identified, be it directly or indirectly. The processing of such information
must therefore fully comply with EU Regulation 2016/679 – GDPR – on the
protection of personal data and (in accordance with Italian law) and
Legislative Decree 196/2003 as amended by Legislative Decree 101/2018
containing the rules for adapting national legislation to the said Regulation.
The aim that the European
Committee intends to achieve with the issuance of these new Guidelines, is to
ensure a uniform application of the legislation on video surveillance within
all Member States of the European Union.
In view of the foregoing, it
must first be made clear that the clarifications given in the draft concerning
the legal basis on which the installation of the system is based are of
fundamental importance.
In principle, it is possible that all the conditions for lawfulness set forth
in Article 6, paragraph 1), of the GDPR
are met, even if those most applied in practice are the legitimate interest
that the Data Controller needs to pursue (Article. 6, paragraph 1),
section f), GDPR) or the performance of a task in the public interest (Article
6, paragraph 1), section e), GDPR).
The European Committee
clarifies that the Data Controller must
specify in detail both the legal basis on which the data processing carried out
is based and the detail of the purposes pursued. A system based on
“security” in its simplest and most general sense is no longer a
sufficiently detailed purpose.
Another important
clarification concerns filming based on legitimate interest. Data processing is
considered lawful only if this legal
basis remains real, current and demonstrable at all times.
The Italian Data Protection
Authority has, on several occasions, recommended that Data Controllers use the
video surveillance tool in a proportionate and non-excessive manner and this
approach can be found in the draft of the forthcoming Guidelines. Before
proceeding with the installation of such systems, in fact, the Data Controller
must use other tools (such as, for example, support by appropriate security
staff, the provision of remote-controlled gates or adequate lighting) and demonstrate the effective need for the
adoption of a video surveillance system. This, paying particular attention
to limiting and defining, both temporally and geographically, filming in order
to constantly respect the principle of minimisation of personal data pursuant
to Article 5, point 1, section c) of the GDPR.
Each Data Controller is
required to balance the interests involved
by analysing, on a case-by-case basis, the legitimate interests of the Data
Controller, on the one hand, and the fundamental rights and freedoms of the
data subjects on the other.
In view of the above, the
EDPB is awaiting the publication of the final text of the Guidelines, which are
not only the first document to apply the principles of the GDPR to data
processing carried out by video filming, but also, by national law, the first
new document on the subject after the “Provision
on video surveillance” issued by the Italian Data Protection Authority
on 8 April 2010.