LfD (Lower Saxony) - notebooksbilliger.de

LfDI - Unknown
Authority:	LfDI (Lower Saxony)
Jurisdiction:	Germany
Relevant Law:	Article 5 GDPR Article 6 GDPR
Type:	Investigation
Outcome:	Violation Found
Started:
Decided:
Published:	08.01.2021
Fine:	10400000 EUR
Parties:	Landesbeauftragte für den Datenschutz Niedersachsen (DPA of Lower Saxony, Germany) notebooksbilliger.de AG
National Case Number/Name:	Unknown
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	German
Original Source:	Press release of the LfD Niedersachsen (in DE)
Initial Contributor:	Maïlys Lemaître

The Landesbeauftragte für den Datenschutz (LfD) Niedersachsen (DPA of Lower Saxony, Germany) fined notebooksbilliger.de €10,4 million for monitoring their employees over video without legal basis.

English Summary

Facts

Unauthorized cameras had been installed by the company notebooksbilliger.de at least 2 two years prior to investigation of the LfD and were monitoring, among other things, workplaces, sales areas, warehouses and common areas. The company claimed that the purpose of the cameras was the prevention and solving of crimes as well as the tracking of goods.

Customers were also concerned by the data processing, since some of the cameras were directed towards the sales areas. In some of these areas, people could typically spend longer periods of time, for example in order to extensively test the equipment on sale, and were still being monitored.

Dispute

Was the video surveillance of employees and customers lawful and proportionate?

Holding

The LfD Niedersachsen reminded notebooksbilliger.de that a company must always first consider milder means than videos surveillance for purposes of crime prevention and solving. Moreover, a video surveillance to detect criminal acts would only have been lawful if there had been reasonable suspicion against specific persons, which was not given in this case. What would have been possible, was to monitor people for only a limited period of time. At notebooksbilliger.de, however, the video surveillance was neither limited to a specific period nor to specific employees.

What’s for the surveillance of customers, the LfD Niedersachsen considered the data subjects to have high interest worthy of protection, especially where they would spend longer periods of time to test the equipment. In that regard, the video surveillance was not proportionate.

In consideration thereof, the LfD Niedersachsen fined notebooksbilliger.de €10,4 million, their highest fine issued so far under the applicability of the GDPR.

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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.

LfD Lower Saxony imposes fine of 10.4 million euros on notebooksbilliger.de

Video surveillance

The State Commissioner for Data Protection (LfD) of Lower Saxony has imposed a fine of 10.4 million euros on notebooksbilliger.de AG. The company had monitored its employees by video for at least two years without a legal basis for doing so. The unauthorised cameras covered, among other things, workplaces, sales rooms, warehouses and common areas.

The company had claimed that the purpose of the installed video cameras was to prevent and investigate criminal offences and to track the flow of goods in the warehouses. However, in order to prevent theft, a company must first consider milder means (e.g. random bag checks when leaving the premises). Moreover, video surveillance to detect criminal offences is only lawful if there is reasonable suspicion against specific persons. If this is the case, it may be permissible to monitor them with cameras for a limited period of time. At notebooksbilliger.de, however, the video surveillance was neither limited to a certain period of time nor to specific employees. In addition, in many cases the recordings were stored for 60 days, which was much longer than necessary.

General suspicion is not enough

"We are dealing here with a serious case of video surveillance in the workplace", says the LfD of Lower Saxony, Barbara Thiel, "companies must understand that they massively violate the rights of their employees with such intensive video surveillance". Even the alleged deterrent effect of video surveillance, which is repeatedly put forward, does not justify a permanent and unprovoked encroachment on the personal rights of employees. "If that were the case, companies could extend surveillance without limits. However, workers do not have to give up their personal rights just because their employer places them under general suspicion," said Thiel. "Video surveillance is a particularly intensive encroachment on personal rights, as it can theoretically be used to observe and analyse a person's entire behaviour. According to the case law of the Federal Labour Court, this can lead to those affected feeling pressure to behave as inconspicuously as possible so as not to be criticised or sanctioned for deviant behaviour."

Customers of notebooksbilliger.de were also affected by the unlawful video surveillance, as some cameras were pointed at seating areas in the salesroom. In areas where people typically spend longer periods of time, for example to extensively test the devices on offer, those affected by data protection law have high interests worthy of protection. This is especially true for seating areas that are obviously intended to invite people to stay longer. Therefore, the video surveillance by notebooksbilliger.de was not proportionate in these cases.

The 10.4 million euros are the highest fine to date that the LfD Lower Saxony has issued under the Basic Data Protection Regulation (DS-GVO). The DS-GVO allows supervisory authorities to impose fines of up to 20 million euros or up to 4 per cent of a company's total worldwide annual turnover - whichever is higher. The fine imposed on notebooksbilliger.de is not yet legally binding. In the meantime, the company has made its video surveillance lawful and has proven this to the LfD Lower Saxony.