Czech Republic: Publishing videos of criminals on Facebook? Not without their consent

08.07.2016

The Supreme Administrative Court of the Czech Republic issued a decision in June 2016 concerning the publication of recordings from camera systems. A bicycle retailer had placed cameras in his shop, and after the theft of bicycles, he published a recording from the cameras on Facebook, portraying a person suspected of the theft. The Office for Personal Data Protection imposed a fine on the retailer for the administrative offense of failure to comply with reporting obligations under the Act on the Protection of Personal Data (i.e. for failure to report his plan to process personal data via a camera system) and for the administrative offense of processing of personal data in a way that does not match the specified purpose of processing (i.e. CCTV recording for publication). The Chairperson of the Office for Personal Data Protection rejected the administrative appeal against the Authority’s decision.

The company filed an administrative action with the Municipal Court in Prague, in which the committing of an administrative offense in the publication of the CCTV recording was disputed. The company did not dispute the charges of the administrative offense in failure to comply with reporting obligations. The Prague Municipal Court ruled in favour of the company, and after the test of proportionality, determined that the company’s interest in the protection of its assets outweighs the interests of the offender – data subject as regards the protection of personal data. The subject’s consent or other lawful purpose to publish, in this case, was not necessary in the opinion of the Municipal Court. Therefore, in the opinion of the Municipal Court, it was not possible to impose sanctions, or it was at least necessary to waive punishment for the company, therefore the court annulled the decision of the Office for Personal Data Protection regarding the administrative offense of processing personal data in a manner that does not match the stated purpose of processing.

The Office for Personal Data Protection filed an administrative appeal against this Municipal Court judgment. The Supreme Administrative Court decided that the judgment of the Municipal Court be referred back for further proceedings. The judgment contains the legally binding opinion that the decision of the Office for Personal Data Protection is lawful. The Supreme Administrative Court concluded that an individual has the right to the protection of property through a CCTV system, but the purpose of operating the CCTV system is merely to hand over recordings to the relevant public authorities, and not the disclosure of said recordings. The disclosure of recordings is certainly not necessary to protect the rights and legitimate interests of the maker of such camera recordings – the acquisition of recordings and handing them over to the competent authorities suffice for such protection. The test of proportionality between the interest to protect the property and the interest to protect personal data in this case is not appropriate, because the Act on the Personal Data Protection provides a clear boundary between these interests. The right to the protection of property is adequately secured by the possibility of installation and operation of CCTV subject to statutory conditions, and the possibility of using recordings by the relevant state authorities. Any other use of camera recordings, i.e. any further handling of personal data thus obtained without the consent of the data subject is not permitted, and there is no justification for such use.  Thus, if the maker of the recordings deals with such a recording in another way, he will be responsible for the commission of an administrative offense.

The opinion of the Supreme Administrative Court, as described above, is not entirely surprising, and is fully in line with the case law of the European Court of Human Rights and the Constitutional Court. Already, in the resolution dated 8 February 2010, the Constitutional Court concluded that “by installing surveillance cameras in public places, the damaged party pursued a legitimate aim, i.e. the protection of their own assets and disclosure of the person whose criminal act would have concerned the damaged party personally. The recorded data was then used only for the strictly necessary purpose (proving guilt by the plaintiff in criminal proceedings) and was not misused, e.g. by public disclosure of the recording, abuse of the plaintiff in the media, etc. We can thus conclude that the installation of surveillance cameras and recordings obtained via this method do not meet the signs of violation of the plaintiff’s constitutionally guaranteed right to privacy.”