The independent Federal and Local Data Protection authorities assume that under the regula-tions of the GDPR footage from video surveillance is generally to be deleted within 48 hours.
In contrast the Federal Labor Court has decided in a ruling of 23 August 2018 (reference 2 AZR 133/18) that storing video surveillance footage for several months is not merely dispro-portional due to the pure expiration of a time period as long as the image sequences originate from a legitimate and overt video surveillance showing a deliberate act by an employee that is at the expense of the employer.
Facts of the Case
The employee filing the complaint was working in a tobacco shop, newsagent and lottery agency. In the entire sales area overt video surveillance was installed by the employer. The respective video footage was stored over a period of several months. The intention of installing the video surveillance was to protect his property against criminal offences from customers as well as employees.
In July 2016 the employer recognized a shortfall of tobacco goods whereupon he randomly checked the video footage from January to June 2016. While the employee was checking the video footage in August 2016 he took a closer look at two days in February 2016. During his research it turned out that on these two days his shop assistant took money from customers without putting it in the cash register. After viewing the video footage the defendant immediate-ly terminated the employment relationship on extraordinary grounds without notice.
The lower instances have decided in favor of the filed dismissal protection claim. The Regional Labor Court was of the opinion that the findings from viewing the video footage were to be excluded as evidence due to a data protection breach. The employer should have deleted the image sequences immediately however well before August 2016. The Federal Labor Court annulled the ruling and returned the matter for further proceedings to the Regional Labor Court. Given that the video surveillance was legitimate and overt – which the Federal Labor Court was not able to assess on the basis of the findings so far – processing and using the relevant image sequences would have been admissible according to article 32 sec. 1 sent. 1 German Federal Data Protection Act (old version) (Bundesdatenschutzgesetz - BDSG a.F.) and thus would have not violated the general right of privacy of the employee. The employer was not obliged to review the video footage immediately. It was ok for him to wait for a legiti-mate matter of concern to view the footage.
Based on the ruling it is no longer necessary to delete video footage from legitimate and oven video surveillance within a few days. In fact, video footage can be stored for several months and reviewed at a later point in time according to the Federal Labor Court. Employers can refer to the general statutory permission stipulated in article 32 sec. 1 sent. 1 BDSG a.F. that can also be found without significant differences in article 26 sec. 1 sent. 1 BDSG n.F. (new ver-sion). Thus the ruling also applies to the current legal situation.
Due to the different views of Courts and Data Protection Authorities we recommend that for the time being employers refrain from extending deletion periods for video surveillance footage and other personal data regarding the behaviour of employees in order to minimize the risk of fines and compensation claims due to data protection breaches.
So far the ruling is only available in form of a short press release so that a final evaluation of the consequences the ruling has in practice must be waited for.