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

SECTION 5  PROCESSING OF SPECIAL CATEGORIES OF DATA

62. Video surveillance systems usually collect massive amounts of personal data which may reveal data of a highly personal nature and even special categories of data. Indeed, apparently non-significant data originally collected through video can be used to infer other information to achieve a different purpose (e.g. to map an individual’s habits). However, video surveillance is not always considered to be processing of special categories of personal data.

63 Example: Video footage showing a data subject wearing glasses or using a wheel chair are not per se considered to be special categories of personal data.

64. However, if the video footage is processed to deduce special categories of data Article 9 applies.

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Example: Political opinions could for example be deduced from images showing identifiable data subjects taking part in an event, engaging in a strike, etc. This would fall under Article 9.

Example: A hospital installing a video camera in order to monitor a patient’s health condition would be considered as processing of special categories of personal data (Article 9).

66. In general, as a principle, whenever installing a video surveillance system careful consideration should be given to the data minimization principle. Hence, even in cases where Article 9 (1) does not apply, the data controller should always try to minimize the risk of capturing footage revealing other sensitive data (beyond Article 9), regardless of the aim.

67 Example: Video surveillance capturing a church does not per se fall under Article 9. However, the controller has to conduct an especially careful assessment under Article 6 (1) (f) taken into account the nature of the data as well as the risk of capturing other sensitive data (beyond Article 9) when assessing the interests of the data subject.

68. If a video surveillance system is used in order to process special categories of data, the data controller must identify both an exception for processing special categories of data under Article 9 (i.e. an exemption from the general rule that one should not process special categories of data) and a legal basis under Article 6.

69. For instance, Article 9 (2) (c) (“[…] processing is necessary to protect the vital interests of the data subject or of another natural person[…]”) could – in theory and exceptionally – be used, but the data controller would have to justify it as an absolute necessity to safeguard the vital interests of a person and prove that this “[…]data subject is physically or legally incapable of giving his consent.”. In addition, the data controller won’t be allowed to use the system for any other reason.

70. It is important to note here that every exemption listed in Article 9 is not likely to be usable to justify processing of special categories of data through video surveillance. More specifically, data controllers processing those data in the context of video surveillance cannot rely on Article 9 (2) (e), which allows processing that relates to personal data that are manifestly made public by the data subject. The mere fact of entering into the range of the camera does not imply that the data subject intends to make public special categories of data relating to him or her.

71. Furthermore, processing of special categories of data requires a heightened and continued vigilance to certain obligations; for example high level of security and data protection impact assessment where necessary.

72 Example: An employer must not use video surveillance recordings showing a demonstration in order to identify strikers.