BVwG - W274 2242638-1: Difference between revisions

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BVwG - W274 2242638-1

Court:	BVwG (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 6 GDPR Article 6(1)(f) GDPR § 12 BDSG
Decided:	20.12.2021
Published:	18.01.2022
Parties:	anonymous DSB (Austria)
National Case Number/Name:	W274 2242638-1
European Case Law Identifier:	ECLI:AT:BVWG:2021:W274.2242638.1.00
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	Rechtsinformationssystem des Bundes (RIS) (in German)
Initial Contributor:	Heiko Hanusch

The Federal Administrative Court held that national provisions on video surveillance and image processing are inapplicable since the GDPR lacks an opening clause that would trigger them. Moreover, video surveillance to deter others from taking pictures of an estate is not justified under Article 6(1)(f) GDPR.

English Summary

Facts

The data subjects and the controller are neighbours. The controller has its business located at the beginning of the street section whereas the data subjects’ business is at the end of the section which is a dead end. They are entrenched in a neighbourly dispute for years. The controller installed two self-triggering cameras on its premises pointing towards the data subjects’ business and capturing the street. The camera took pictures of the data subjects without their consent.

The reasons given by the controller for installing the cameras were as follows:

constant loitering of one of the data subjects around the premises of the controller
taking pictures of the premises
numerous (about 300) complaints to the trade authorities concerning the business of the controller
throwing of rubbish bags over the fence (which the court did not see as proven)

Holding

The court confirmed its view that special national provisions on video surveillance and image processing are inapplicable since the GDPR lacks an opening clause for them (cmp. BVwG W211 2210458-1/10 https://gdprhub.eu/index.php?title=BVwG_-_W211_2210458-1/10).

The court held that the surveillance is not justified under Article 6(1)(f) GDPR. To the court it was not clear how image recordings could deter people from filing unjustified reports because people are in principle free to be in public traffic areas, even if it amounts to loitering, and free to file reports with the authorities on the basis of observations made in public traffic areas. Furthermore, the court reasoned that installing cameras could also not be an effective and therefore not an appropriate measure against the taking of photos by means of personally-held cameras, because they could in no way prevent such behavior.

Furthermore, the court mentioned that even if “the throwing of rubbish bags over the fence” were proven, the processing would not have been justified under Article 6(1)(f) GDPR since the captured space is exceeding the general recommendation of the DSB (Austria) which is a maximum of 50cm from the property line.

Comment

Another view on the applicability of national video surveillance and image processing provisions takes the Supreme Court of Austria (Oberster Gerichtshof - OGH) (see OGH 6 Ob 150/19f, https://rdb.manz.at/document/ris.just.JJT_20191127_OGH0002_0060OB00150_19F0000_000). However, the Supreme Court did not explicitly address this topic but rather implicitly affirmed the applicability.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Postal address:
Erdbergstrasse 192 – 196
1030 Vienna
Phone: +43 1 601 49-0
Fax: +43 1 711 23 – 889 15 41

Email: einlaufstelle@bvwg.gv.at
www.bvwg.gv.at

DECISIONS D A T U M
2 0 . 1 2 . 2 0 2 1

BUSINESS NUMBER

W 2 7 4 2 2 4 2 6 3 8 - 1/1 0 E

I M N A M E N D E R E P U B L I K !

The Federal Administrative Court recognizes Mag. LUGHOFER as chairman through the judge

as well as the expert lay judges Prof. KR POLLIRER and Dr. GOGOLA as assessor over the
Complaint of the 1st XXXX , 2nd XXXX , both XXXX , both represented by List Rechtsanwälte

GmbH, Weimarer Straße 55/1, 1180 Vienna, against the decision of the data protection authority,

Barichgasse 40-42, 1030 Vienna, from March 5th, 2021, GZ. XXXX , participants 1. XXXX , 2. XXXX ,
both XXXX , both represented by Estermann & Partner OG, Rechtsanwälte, Stadtplatz 6,

5230 Mattighofen, for violating the right to secrecy, according to a public

oral hearing rightly:

The complaint will not be followed.

The revision is not permitted according to Art. 133 Para. 4 B-VG.

Reasons for decision:

The parties are neighbors and have apparently been in numerous for a long time

neighborhood disputes involved.

In the course of a complaint procedure regarding XXXX before the data protection authority (hereinafter:
relevant authority) with reversed party roles charged XXXX and XXXX [hereinafter:

First participant and second participant (1st MB, 2nd MB)] on May 14, 2020 "Notice" against, - 2 -

initially XXXX (hereinafter: First Appellant, 1st BF) and submitted that the 2nd MB was
owner of the affected property. There are two cameras on this

only filmed the interior of the workshop (of the 1st MB).

the parking lot which is on the property of the 2nd MB. The purpose of the facility is to protect
MB from break-ins, theft and damage to property.

The 2nd BF installed two game cameras with which the MB would be monitored. the

Cameras filmed the driveway to the property of the 2nd MB and injured the 2nd MB and the 1st
MB in the right to secrecy. The authority concerned may ask the 2nd BF that

remove cameras.

This "advertisement" was evaluated by the competent authority as a complaint by the MB and a
Order to rectify defects issued.

As part of a statement on a further complaints procedure before the accused

Authority to XXXX (apparently the complainant there was the 1st BF and others) took the MB with them
Reference to the complaints procedure at issue here on June 17, 2020, the 1st BF films

all customers as well as the MB with cameras. On Sunday, May 10, 2020 at around 8 a.m

the 2.MB was photographed by one of these cameras.

With a "complaint supplement" from July 20, 2020, the MB put forward the cameras of the two

BF are aimed at the public access road, but in the area where the
public property ends and the driveway to the MB property begins. The 2nd MB is

at least on May 10th, 2020 by the camera between the container and

container lid had been jammed. The wildlife cameras triggered when there was movement,
whereby not only the MB on the way to their property, but also all

approaching customers would be filmed. The MB requested a finding that as a result

They and their customers have the right to their own image and to secrecy in the period from
02.05. until 11.05.2020 were injured. The cameras were removed on May 11, 2020

been. The first camera on the wooden wall was recognized by the MB on May 2nd, 2020,

the second camera in the container was noticed on May 4th, 2020. The cameras are
Was installed there at least from May 2nd, 2020 to May 11th, 2020.

Upon request, the BF expressed themselves (in the context of a statement on XXXX).

their legal representation on July 13, 2020 on the matter in question to the effect that
that the wildlife cameras were by no means installed because of the MB. The reason is that

Garbage bags were repeatedly thrown over the fence onto the property of the 2nd BF
is engaged in waste management, which some people take as an incentive to collect their own waste, - 3 -

just throw it over the fence. For this reason there is also a sign at the entrance to the
attached to the company premises, according to which the unauthorized dumping of garbage is not permitted.

This also refers to the video surveillance of the company premises. the

Game cameras were not aimed at the property of the 2nd MB and the 1st MB and were filming
no areas outside the company premises. It is disputed that the 2nd MB on

May 10, 2020 was photographed.

In addition, the BF apparently took on other circumstances that made other procedures
concern the authority concerned, position and also stated that the MB had

almost 300 complaints against the BF were filed with the trade authority, and it was at all

only about ten to the initiation of a procedure.

With a further statement of August 21, 2020, the MB stated that the 1st BF was apparently finished

Impermissible images from the premises of the body shop of the 1st MB. This

would then be used to process the body shop of the 1st MB official
The pure and only intention behind these ads is to harass the MB.

Photographs of the representatives of BF who were in the garden of the property of MB

showed. It is requested that the 1st BF be punished for this illegal image processing.
The game cameras of the 1st BF are exactly on the access road to the MB property

directed. The MB would never have been able to perceive that anyone was throwing garbage bags over
would have thrown the fence onto the premises of the 2nd BF.

With a further "complaint supplement" from February 5th, 2021, the MB submitted for several

Months they heard drone noises above the property of the 1st MB. So be it
a drone has already been seen on the roof of the factory building. It exists

strong suspicion that the 1st BF the property of the 1st MB and located there

Photograph people regularly with a drone.

With the contested decision, the relevant authority upheld the complaint and filed

determined that the BF had violated the MB's right to secrecy by

BF mounted game cameras, the MB in the period from 02.05. until 05/11/2020 recorded and
would have included.

The authority concerned established the following facts (only the

Party designations):

"The 1st MB runs a body shop with a paint shop at the address XXXXamInn.

The 1st BF runs a company at the address XXXX for collecting, transporting and - 4 -

for the disposal of non-hazardous waste, for the rental of containers, for exercising the
Road haulage trade and trade in goods of all kinds. The BF have on their

Two wildlife cameras mounted on company premises in the period from May 2nd, 2020 to May 11th, 2020.

The recording area is presented as follows:

(a photo follows)

The two game cameras have the access road to the operation of the 1st MB or to the

Operated at the XXXX and XXXX recorded. The MB are in the period from 02.05.2020 to
May 11th, 2020 captured and recorded by the wildlife cameras.”

The authority concerned legally concluded that the processing of personal data by means of

Image processing systems for the protection of property in the private sector can in principle
be based on the provision of Article 6 (1) (f) GDPR. According to the

Principles of Art. 5 GDPR, in particular that of data minimization in accordance with Art. 5 para.

1 lit. c GDPR, the processing must be appropriate and relevant to the purpose and based on the
be limited to what is necessary for the purposes of the processing.

As far as the game cameras in question, however, the access road to the operation of the 1st MB

recorded and thus necessarily also recorded and recorded the MB
the BF did not comply with the principle of data minimization, which is why the complaint

to be followed.

As far as the MB suspected in their submission of February 5th, 2021 that they from the 1st BF with a

drone, it should be noted that a general

submissions consisting of conjectures to inadmissible exploratory evidence
which the data protection authority is not obliged to include.

The complaint of the BF is directed against this decision because of content illegality

and violation of procedural requirements with the requests for implementation of a
oral hearing to annul the decision and dismiss the appeal.

Alternatively, an application is made, the matter for renewed hearing and decision

referred back to the primary authority.

The authority concerned submitted the electronic file together with the complaint to the

Administrative Court - received on May 21, 2021 - with reference to the decision., - 5 -

With a statement of October 14, 2021, the MB stated that the incorrectness of the submissions of the
BF, they set up the wildlife cameras because people kept throwing garbage bags over the

fence on the premises of the 2nd BF, it would also result that those

Side of the fence where the wildlife cameras were mounted, only to the MB property
lead. There is no further road or other possibility of transit here

strangers, which is why I couldn't find it, like there people throwing garbage bags over the fence

should be thrown. Of course, the 1st MB is also entitled to
Confidentiality has been violated because they always have to have the two wildlife cameras

if he has entered the property of MB or has left his residential premises or

had approached this. It was incorrect that the BF exclusively used their own company reason
captured with the wildlife cameras. In the investigation file of the authority concerned are

Photographs that clearly show that the game cameras are just

Photographed the access area to the MB property.

It is not true that the 1st MB (meaning the 2nd MB) is constantly at the fence of the

BF stopped to take photos. The 2nd MB have better things to do than constantly at the fence

the BF hanging around. You have there, however, dubious events on the premises
the BF perceived, such as weighing processes, where in addition to the

Disposal loads of cars, forklifts and similar equipment were driven up to the
Making disposal charges appear heavier. This got the 2nd MB at the

Public prosecutor's office in Ried im Innkreis.

On October 21, 2021, a public oral hearing took place before the BVwG, in which the
1st BF (in person and as managing director of the 2nd BF) was heard as a party. the

MB did not participate in the negotiation.

The BF added that disputes had been going on for about 20 years
the disputed parties instead, although it is hardly possible to describe how the 2nd MB in particular

against the 1st BF, ultimately also against his son and the employees

ads have been reimbursed. If the MB were running, the 2.MB would have better things to do than
hanging around next to the BF's fence, exactly the opposite seems true. Since about

20 years, photographs are taken on the BF site. As the representative of the BF for the first time on the

property of the MB, it was the first time that he was photographed there
may be. The wildlife camera was set up “pro forma” as a deterrent and also that the

2.MB don't come to the fence all the time. In fact, it's just one
Device that appears to the outside as a camera. In reality it is a - 6 -

Dummy, a fake. No recordings were ever made with it
a real game camera, but it has no memory card and no batteries.

The 2nd MB has demonstrably spent three months with six old tires on the part of the 1st and

the 2nd BF busy. Regarding the problem of incorrect weighing, it is correct that in this regard
a fraud report had been filed via the MB lawyer. But this only illuminates

an aspect. It should be noted in this regard that there has been one for 20 years

Problems of monitoring on the part of the MB compared to the BF.

About two years ago, the 1.BF turned to the BFV with the question of what to do

that he could no longer stand this persecution by the MB, whether he should sell his company

should. The BFV was advised to pretend to take pictures. this one
The 1.BF obviously followed the advice, whereby it is expressly stated that it is

around no functional camera handle. Next, the 1.BF and his lawyer

also placed by the fence and they also "gave" across, but without photos
do.

The representative of the authority concerned referred to the submission of the BF, according to which the

Cameras served to prepare for possible trespassing lawsuits and that they are therefore in accordance with
Art. 6 GDPR are justified. It'll be on the legal assessment im fought

informed.

As a result, the complaint is not justified:

The following facts are certain:

The 1.MB operates at the address XXXX, a body shop with a paint shop,
the 2nd MB is the owner of the property mentioned above and keeps it again and again

on this one.

the1 BF operates a collection, transport and company at address XXXX
for the disposal of non-hazardous waste, for the rental of containers, for exercising the

road haulage business and trading in goods of all kinds.

The spatial situation in the XXXX area is as shown below
picture shown:, - 7 -

There, a branch of the road branches off from the larger road in the lower right edge of the picture
Industriezeile at a right angle, leads between the area on the left of the BF and the

right-hand company XXXX as a dead end also to the company premises of the 1st MB (left behind)

and to another company premises (back right).

There have been violent conflicts between the 1st BF on the one hand and the MB on the other for many years

Disputes and disputes leading to mutual ads and

conducted and conduct court proceedings.

The 1st BF fortified as a "defensive measure" against photographing and looking over

on the part of the 2.MB to the premises of the 2.BF, but not to unknown persons in the case of the

to identify the throwing of rubbish onto the premises of BF, at least in the
Period from 02.05. until 05/11/2020 without marking on the with a cross on the on

"Tiny" brand game cameras marked in the photo above

Self-trigger mechanism.The way of attaching the cameras is determined by the following
both photographs:

Both cameras were each on the branch leading to the property of the 1st MB

XXXX (area between the property of the 2nd BF and the company XXXX) and
recorded the respective area of the entire roadway in the recording area. The cameras

had memory cards and batteries during the suspension period mentioned and were

ready to trigger.

During the period mentioned, the cameras were released when the 1st MB walked past and drove past

and the 2nd MB and took photos of them.

Evidence assessment:

At the heart of the assessment of evidence is the question of whether it is essential according to the verdict

Period actually image recordings of the MB by the BF indisputably on the area

wildlife cameras aimed at the access road took place:

For the first time during the oral hearing on October 21, 2021, the BF brought through their

law-friendly representative analogously, on whose advice the 1st BF wildlife cameras have

set up "pro forma for deterrence", although these are actually dummies. It, - 8 -

recordings were never made with it. It is a real wildlife camera, but that
I don't have a memory card or batteries. The 1st BF also confirmed this fact

in his statement to the party.

On the other hand, the BF - confronted with the complaint in question -
already represented by a lawyer in the brief dated July 13, 2020, stated that the cameras were

by no means attached because of those involved, but because again and again

Garbage bags were thrown over the fence onto the property of the 2nd BF. The cameras are
not aimed at the MB's property and did not film any areas outside of it

premises.

In their complaint against the disputed decision, the BF led - again as a lawyer
represented - out, it has a comparison of the legitimate interests of both parties

to take place. The BF would only have their own company reason with the cameras

recorded. The processing would only have been limited to the necessary extent, because only
the company premises and the fence had been filmed. The cameras were used for submission

possible further disturbance of possession sue against any disturbers

Means available to take action against any disruptors. The investigation
personal data for the purpose of reporting is permissible.

This submission, which has been submitted several times in legal briefs, is consistent with the submission
not only does not reconcile in the oral appeal hearing, it concludes

this off. Because the two cameras indisputably merely in a period of the past

mounted, is the obtaining of objective evidence, such as an assessment by
an expert, in any case no longer possible. The only evidentiary one

substantiation of the current argument that these were dummies

the statement of the 1st BF.

In view of the long-standing view to the contrary,

according to which image processing was very well justified and this just for

Data determination for the purpose of reporting or filing a lawsuit
(albeit against other people, namely those who would throw rubbish over the fence)

there is no comprehensible circumstance why the last submitted submission or

the statement of the 1st BF would be to be believed. If the cameras were actually like last time
claims never "sharp" due to lack of memory card and lack of battery equipment

been, it would not be clear why these circumstances were not already in the past
Proceedings in which the BF were already represented by a lawyer were carried out., - 9 -

The last statement made by the 1st BF that this point of view is credible for that reason alone
because there would be no images, the fact that the existence of stored or

printed images in the inference of the BF and therefore from the non-presentation of such

Data or printed images in no way indicate the non-existence of such data or images
to close.

If the 1st BF further states that the 2nd MB approached the fence at times

that you would have seen the red flashing in the case of "sharp" image surveillance, this is
just as unsuitable to substantiate the point of view of the BF, especially as there is no evidence

is present, after which it would not have "flashed red". Straight from the statement of the 1.BF, after which the

2.MB repeatedly approached the fence of the BF for their "monitoring activities".
but to deduce that these in the period mentioned by the "sharp" cameras (see above)

has been recorded.

The fact that the cameras were aimed at the entire area of the access road
already follows from the relevant - contrary to the statements in the prepared brief

- Unmistakable relevant information from the 1st BF (minutes S 5 and 6).

It is precisely from this that the MB, whose only access route through the
The recording area of the cameras ran there in the specified period (when entering or leaving

or at the entrance or exit) were photographed. Evidence to the contrary
lie - apart from the one presented above and in terms of their credibility

acknowledged statement of the 1.BF - not before. That through the camera recordings, the MB

were identifiable, already results from the repeatedly expressed responsibility of the BF,
it was about cameras, the purpose of which was the filing of trespassing suits

against any disturbers (see complaint). It can therefore be assumed that the

technical requirements of these cameras are up to this goal, so that also of
it was to be assumed that the MB driving or passing by could be identified.

The stated purpose of mounting the cameras, a countermeasure against

Photographing and looking over from the 2.MB on the premises of the 2.BF, follows
in particular from the clear submissions of the BF by their representatives in the oral

Negotiation (Record S 3). If the 1st BF initially stated as the (sole) purpose, it

he admitted that garbage bags had been repeatedly thrown over the fence
in the statement of purpose of the defensive measure (“both”). After an assessment

the statement of the 1st BF in relation to the throwing, which was without emphasis and not explained in more detail
of garbage bags in relation to the argument that the 1st BF had because of the "persecution" - 10 -

by the 2nd MB already considering selling the company, is in the dispute of the 1st BF
to see the true and sole motive of the camera installation with the MB.

The other circumstances, in particular with regard to the location of the property, transit or

Purpose of passage of the MB through the recording area, public of the subject
Details of the XXXX as well as the attachment and recording area of the cameras are undisputed or

follow the relevant credible information of the 1.BF.

Legally follows:

The GDPR does not contain any special provisions for the processing of image or sound data,

but subordinates the related processing activities to the general regime.

However, since the GDPR applies to any data processing outside of the family and personal
area is generally used, it is also applicable to video surveillance

take into account (Thiele/Wagner, practical commentary on the Data Protection Act § 12 margin nos. 1 and 2,

As of January 1st, 2020, rdb.at).

The Austrian legislator made in §§ 12 and 13 DSG of the opening clause

according to Art. 6 Para. 2 and 3 GDPR use.

According to Article 6 Paragraph 2 GDPR, Member States can make more specific adjustment provisions
the application of the provisions of this regulation in relation to processing

Maintain or introduce compliance with paragraph 1 lit c and e by providing more specific
Specify requirements for processing and other measures more precisely in order to

ensure lawful and fair processing,

including for other processing situations in accordance with Chapter IX.

According to paragraph 3, the legal basis for the processing according to paragraph 1 lit c and e

set by

a) Union law or

b) the law of the Member States to which the controller is subject.

...

In the absence of a more specific opening clause, it is questionable according to the teaching whether there is a
According to the GDPR, Member States are still permitted to set national standards for

To introduce or maintain video surveillance or (open-ended) image processing.

Article 6 paragraphs 2 and 3 allow more specific regulations (at - 11 -

Compliance with the other requirements) to be maintained or waived, but only for
Processing on the basis of the legal basis Art 6 Para 1 lit c and lit e. When

The legal basis for the implementation of video surveillance by private parties is Art 6 Para

1 lit f (Kastelitz/Hötzendorfer/Tschohl in Knyrim, DatKomm Art 6 DSGVO Rz 79
mwN – as of May 7th, 2020, rdb.at).

The BVwG went in several decisions of the inapplicability of § 12 para

4 Z1DSG lack of opening clause (W2562214855 and W2112210458).
are there decisions after the entry into force of the GDPR that §§ 12f DSG still apply to

consider applicable (6Ob 150/19f).

The authority concerned apparently only assumed the applicability of the
provisions of the GDPR, especially since she examined the case solely on the basis of these and

lack of justification for image surveillance.

This view is to be shared in the result:

Since there is neither consent (Art. 6 Para. 1 lit a) nor image processing for

Fulfillment of a legal obligation (lit c) or in the performance of a public obligation

Task (lit e) is conceivable, only the justification of lit f could be in question
come:

According to this, the processing is lawful if it is used to protect legitimate interests
of the person responsible or a third party, unless the interests or

Fundamental rights and fundamental freedoms of the person concerned, which are related to the protection of persons

Data require prevail.

The "test scheme" drawn up by the ECJ for the previous provision covers this

1. the existence of a legitimate interest by which for the processing

responsible is perceived,

2. the necessity of processing personal data to achieve the

legitimate interest and

3. no predominance of the fundamental rights and freedoms of the data subject. At its core is
to weigh up the interests affected in each individual case

(Kastelitz/Hötzendorfer/Tschohl in Knyrim, DatKomm Art. 6 GDPR, margin no. 51 or margin no. 79/2). - 12 -

The BF led (only in the context of the hearing) as a "justification" of the image surveillance
(according to implausible information provided by dummies) the previous 2. MB about 20 years

at (the filing of countless ads, loitering next to the fence, taking pictures on the

premises of the BF). In the previous proceedings, only the opinion of
13.7.2020 - completely unspecific - the "continuous constant monitoring of the BF" as well

"300 reports to the trade authority". The BF justified up to the complaint

the positioning of the cameras with the ultimately not proven and not applicable
Allegation of the need to identify people who illegally throw garbage bags over the

Fence the BF would throw.

The latter circumstance (throwing garbage bags) could not - because on the factual level
demonstrable - but would not be included in the weighing of interests to be carried out

For this reason alone it is not suitable for justification, especially even in the case of one

fundamentally permissible image surveillance, such only up to the basic limit and
at most max. 50 cm beyond that would be considered, while according to the findings

the entire area of the access road was monitored.

It remains to be checked whether any behavior of the MB, in particular the 2nd MB,
BF's legitimate interest in surveillance by means of cameras.

In this regard, further submissions were unnecessary due to the completely unspecific submissions
taking of evidence. To what extent such recordings could be suitable, the MB itself

to prevent unauthorized reports being filed is not obvious because it is people

basically free, due to public traffic areas made
reporting observations to the authorities. The submissions of the BF did not provide any

Evidence that the MB or the 2nd MB infringes the property of the BF(s). The

Staying alone on the public road, even considering this by type and duration
“Loitering” would not qualify as a “surveillance interest” of the

BF to justify, whereby it is not claimed that the MB in this regard a danger

for the person of the 1st BF or the assets of the BF. Last could be stationary
Cameras with a self-timer mechanism are also not effective and therefore not suitable

measure against the taking of photos of the MB using personally carried cameras,

because they could by no means prevent such behavior (for the fact that the
Trigger mechanism and positioning of the cameras each person on the premises

the BF photographed, would not result from the facts of the case
reference points).

the admissibility of such occasional recordings must be clarified by the MB., - 13 -

In this respect, no interests worthy of consideration emerged that would be suitable
to justify the temporary surveillance by self-triggering cameras by the BF,

which the evident interests of residents, not through such cameras when driving

or approaching or driving away or leaving their property and photographed
to be compared.

Even without recourse to the provisions of § 12 DSG, in particular § 12 Para. 4 Z 1

to deny the legality of the image processing by the BF.

The reasoning of the BF in the complaint is to be explained in more detail:

In the absence of justification of the image surveillance itself, it can initially be at best

labeling on the fence, the area is under video surveillance - as from the BF
claimed - not arrive. It was therefore not necessary to make any statements on this.

As further determined, the 1st MB and the 2nd MB were in the said period of these

cameras recorded. The only in the context of the hearing after the
Complaint to the BVwG for the first time that it had - for lack of

operational cameras - at no time was it a question of image surveillance

already based on facts as inaccurate (see Evidence Assessment).

If the BFs point out in the complaint that the MB merely claimed that

only the 2nd MB was photographed by one of these wildlife cameras on May 10, 2020 at around 8 a.m
was, therefore not the 1st MB, the arguments of the MB already stand in contrast to this

the complaint to the data protection authority that both MBs had been monitored. the

Cameras would have filmed the driveway to the property of the 2nd MB and thereby this and the
1. MB violated the right to secrecy. The same is evident from the opinion of

June 17, 2020, ("...because the 1st BF used the access road to property XXXX from his property,

films and therefore all customers and also the respondents in the law
Confidentiality breached due to inadmissible image processing"). The further lead

the photocopy of the 2nd MB on Sunday, May 10th, 2020, at around 8 a.m. is definitely

to be understood as given as an example. From the "complaint supplement" from 20.07.2020
it is expressly stated that the 2nd MB "at least" on 05/10/2020 from one of the two

cameras had been photographed. It follows sufficiently from this that, according to the submissions

the MB photographed them from the cameras of the BF in the period from May 2nd, 2020 to May 11th, 2020
and thus violated their right to secrecy. To the related

For the current findings, reference is made to the assessment of evidence above, - 14 -

In addition, the BF does not succeed in identifying an inconsistency in relation to the
to show the "period of time" mentioned in the verdict in the argument of the MB: That the argument,

the 2nd MB was "at least" photographed by one of the two cameras on May 10, 2020,

on the basis of the other submissions presented above, only by way of example
and has a more concrete character, has already been shown. It is therefore

incorrect that regarding the other days (02.05. to 09.05. and 11.05.2020) submissions

would be missing.

If the BF further state that the MB in their supplement of 07/20/2020 themselves

submitted that the second camera "was only set up from May 4th, 2020", so

Do you overlook the fact that the MB actually submitted that the second camera was on 05/04/2020
"noticed" (not set up).

been installed

hanged from May 2, 2020 to May 11, 2020, he believes they were hanged there longer.

For further complaint execution, the balancing of interests must be in favor of the BF

stand out:

Here, the BF initially wrongly assume that the cameras only have theirs
own company ground recorded with the wildlife cameras. In fact, the monitoring went like

established well above and beyond the recommendations of the Data Protection Authority
harmless further range of 50 cm. Also the other arguments of the BF

According to the findings, there is no basis for weighing up interests. One

Image surveillance to prevent the "staring" claimed by the BF or
"Taking photographs" by the 2.MB does not serve the "preventive protection of persons or

Things" on the property of BF and in this regard does not provide a suitable or im

With regard to the principle of data minimization is a justified measure. That the
Cameras would be used to prepare for trespassing lawsuits

Factual level proved to be inaccurate.

Overall, the data processing that took place in the period mentioned was through pictorial
Recording of the access road to the MB, with the MB taking photos by self-triggering

were already not permitted under the GDPR, so that the complaint ultimately failed

entitlement.

The statement of the inadmissibility of the revision follows the fact that individual circumstances

were to be assessed on the basis of the previous case law, whereby the case law of
VwGH question of the applicability of the national Austrian, - 15 -

Provisions for image surveillance in the context of this procedure probably no clarification

would be accessible because the complaint is already unsuccessful in application of the GDPR.

@@ Line 52: / Line 52: @@
 }}
-The Federal Administrative Court held that national provisions on video surveillance and image processing are inapplicable since the GDPR lacks an escape clause for them. Moreover, video surveillance to deter others from taking pictures of an estate is not justified under [[Article 6 GDPR#1f|Article 6(1)(f) GDPR]].
+The Federal Administrative Court held that national provisions on video surveillance and image processing are inapplicable since the GDPR lacks an opening clause that would trigger them. Moreover, video surveillance to deter others from taking pictures of an estate is not justified under [[Article 6 GDPR#1f|Article 6(1)(f) GDPR]].
 == English Summary ==
@@ Line 58: / Line 58: @@
 === Facts ===
 The data subjects and the controller are neighbours. The controller has its business located at the beginning of the street section whereas the data subjects’ business is at the end of the section which is a dead end. They are entrenched in a neighbourly dispute for years. The controller installed two self-triggering cameras on its premises pointing towards the data subjects’ business and capturing the street. The camera took pictures of the data subjects without their consent.
 The reasons given by the controller for installing the cameras were as follows:
-- constant loitering of one of the data subjects around the premises of the controller
+* constant loitering of one of the data subjects around the premises of the controller
+* taking pictures of the premises
-- taking pictures of the premises
+* numerous (about 300) complaints to the trade authorities concerning the business of the controller
+* throwing of rubbish bags over the fence (which the court did not see as proven)
-- numerous (about 300) complaints to the trade authorities concerning the business of the controller
--  throwing of rubbish bags over the fence (which the court did not see as proven)
 === Holding ===
 The court confirmed its view that special national provisions on video surveillance and image processing are inapplicable since the GDPR lacks an opening clause for them (cmp. BVwG W211 2210458-1/10 https://gdprhub.eu/index.php?title=BVwG_-_W211_2210458-1/10).