Wednesday, January 4, 2017

After the brutal terror attacks in German cities of Berlin and Ansbach and the rampage in Munich last year, the German Government intends to allow video surveillance in public areas.

Therefore, the German Government has presented a draft law that facilitates video surveillance for private operators of public areas and public events. More precisely, the Federal Data Protection Law will be amended to introduce a legal basis for video surveillance. According to the draft law, the protection of life, health and freedom shall be regarded as a “particularly important public interest” that allows video surveillance. Private operators will not be obliged to install cameras. However, the government hopes that they will make more use of them.

Assuming the draft law does come into force, the new legal basis for video surveillance may also be applicable after May 2018, when the EU General Data Protection Regulation (GDPR) becomes enforceable. The GDPR contains flexibility clauses that allow Member States to maintain or introduce more specific provisions in certain circumstances.

The German Association of Judges considers that the draft law conflicts with the German Constitution. The Association’s view is that the law would conflict with the fundamental right of informational self-determination. This fundamental right is also embodied in the fundamental right of human dignity and any limitation of the right of informational self-determination requires a legal basis that is sufficiently precise and clear. The Association also considers that the draft law does not meet the requirements around the prohibition of excessive measures. The majority of people observed by video surveillance in public areas are not given a reason for the surveillance. The Association’s view is that a feeling of being observed constitutes a breach of the fundamental rights of informational self-determination/human dignity. The Association is also of the opinion that public safety and security is a core function of the state and not of private companies.

There is concern that the introduction of video surveillance will lead to a heightened sense of being observed among the German public. It is doubtful whether that will actually happen given that most public areas are already observed by thousands of private mobile cameras. More generally, the likely effectiveness of video surveillance is questionable. Will cameras be effective in deterring terrorist attacks? Cameras are likely to be most useful in capturing images that will allow suspected terrorists to be apprehended and so, arguably, video surveillance serves the investigation of criminal offences only. In addition, many people would agree that public safety and security is a fundamental task of the State and that this should not be transferred to the private sector. In light of this, perhaps the proposed amendments to the Federal Data Protection Law are inappropriate?

In the German context, the reinforcement of video surveillance poses problems with the fundamental right of the supervised persons. However, the recent disasters show the very real risk of terrorist atrocities in public areas. Whether video surveillance will be an effective solution remains to be seen.