Guidelines 03/2019 on processing of personal data through video devices

Paragraph 3.1.3  Balancing of interests

30. Presuming that video surveillance is necessary to protect the legitimate interests of a controller, a video surveillance system may only be put in operation, if the legitimate interests of the controller or those of a third party (e.g. protection of property or physical integrity) are not overridden by the interests or fundamental rights and freedoms of the data subject. The controller needs to consider 1) to what extent the monitoring affects interests, fundamental rights and freedoms of individuals and 2) if this causes violations ornegative consequences with regard to the data subject’s rights. In fact, balancing the interests is mandatory. Fundamental rights and freedoms on one hand and the controller’s legitimate interests on the other hand have to be evaluatedand balanced carefully.

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Example: A private parking company has documented reoccurring problems with thefts in the cars parked. The parking area is an open space and can be easily accessed by anyone, but is clearly marked with signs and road blockers surrounding the space. The parking company have a legitimate interest (preventing thefts in the customers’ cars) to monitor the area during the time of day that they are experiencing problems. Data subjects are monitored in a limited timeframe, they are not in the area for recreational purposes and it is also in their own interest that thefts are prevented. The interest of the data subjects not to be monitored is in this case overridden by the controller’s legitimate interest.

Example: A restaurant decides to install video cameras in the restrooms to control the tidiness of the sanitary facilities. In this case the rights of the data subjects clearly overrides the interest of the controller, therefore cameras cannot be installed there.