AEPD (Spain) - E/00038/2021

AEPD (Spain) - E/00038/2021
Authority:	AEPD (Spain)
Jurisdiction:	Spain
Relevant Law:	Article 5(1)(c) GDPR
Type:	Complaint
Outcome:	Rejected
Started:
Decided:
Published:	07.12.2021
Fine:	None
Parties:	B.B.B C.C.C
National Case Number/Name:	E/00038/2021
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Spanish
Original Source:	AEPD (in ES) (in ES)
Initial Contributor:	Genoveva Gil

The Spanish DPA closed a procedure against the proprietor of a false camera installed in a public space because it did not process personal data.

English Summary

Facts

The data subject complained about the installation of a surveillance camera oriented towards a public space. There was no sign indicating the presence nor the purpose of this camera.

The proprietor informed that this camera was a false one and that it did not record any footage, and that it was installed for dissuasive purposes only.

Holding

The Spanish DPA closed the procedure since there was no processing of personal data taking place. However, it noted that the camera should preferably be oriented towards a private space, because individuals could still feel intimidated by the presence of this camera.

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English Machine Translation of the Decision

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

 File No: E / 00038/2021
RESOLUTION OF ACTION FILE
Of the actions carried out by the Spanish Agency for Data Protection and based on the following
FACTS
FIRST: A.A.A. (* hereinafter, the complaining party 1), on October 2, 2020, filed a claim with the Spanish Data Protection Agency. The claim is directed against B.B.B. with NIF *** NIF.1 (hereinafter, the claimed party). The reasons on which the claim is based are the following:
In my capacity as a notary, they required me to record that, in the Plaza del Ayuntamiento de *** LOCALIDAD.1 (*** PROVINCIA.1), calle *** DIRECCIÓN.1, there is a semi-hidden camera that focuses to the town hall square. Apparently, according to the applicant (C.C.C.), that camera has been installed by the mayor of *** LOCALIDAD.1 because he is the tenant of that property (which he has sublet). There is no public notice, or I did not see it, that warns of the existence of that camera. As I believe that an infringement of data protection regulations is possible, I bring it to your attention for the appropriate purposes.
Relevant documentation provided by the claimant:
- Document simple copy of ACT OF PRESENCE number four hundred and thirty-nine and SOLE DILIGENCE dated 09/17/2020 stating the facts signed by the notary A.A.A.
- Photographs of the camera and its location.
SECOND: CCC, DDD, EEE, FFF, GGG, denounce the video surveillance camera located in Plaza del Ayuntamiento de *** LOCALIDAD.1 (*** PROVINCIA.1), calle *** DIRECCIÓN.1, which focuses on the Town Hall Square.
Relevant documentation provided by these claimants:
- Document simple copy of ACT OF PRESENCE number four hundred and thirty-nine and SOLE DILIGENCE dated 09/17/2020 stating the facts signed by the notary A.A.A.
- Photographs of the camera and its location.
THIRD: In accordance with article 65.4 of Organic Law 3/2018, of December 5, on the Protection of Personal Data and guarantee of digital rights (hereinafter LOPDGDD), said claim was transferred to the claimed party on 10/23/20, so that it could proceed to its analysis and inform this Agency within a month of the actions carried out to adapt to the requirements set forth in the regulations for the protection of data.
C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es
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 No reply was received to that effect.
FOURTH: On January 5, 2021, the Director of the Spanish Agency for Data Protection agreed to admit for processing the claim presented by the complaining party.
FIFTH: The General Subdirectorate for Data Inspection proceeded to carry out preliminary investigation actions to clarify the facts in question, by virtue of the investigative powers granted to the control authorities in article 57.1 of Regulation (EU) 2016 / 679 (General Data Protection Regulation, hereinafter RGPD), and in accordance with the provisions of Title VII, Chapter I, Second Section, of the LOPDGDD, having knowledge of the following points:
- On 07/08/2021 it is verified with respect to the property CL *** ADDRESS.1 *** LOCALITY.1 (*** PROVINCE.1) that the owner is Mrs. H.H.H.
- Dated 08/03/2021, H.H.H. sends this Agency the following information and statements:
1. Copy of the lease contract dated July 1, 2014 without signing being the tenant CATALA VISA S.L.U. the lease term being fifteen years.
2. Provide photos of the camera location where there is no camera.
- On 08/31/2021, CATALA VISA S.L.U. sends this Agency the following information and statements:
1. That exempts H.H.H. from all responsibility. since he had not informed or requested permission from the owner of the placement of the camera.
2. That the camera has been withdrawn and that its mission was dissuasive due to the serious events that were taking place in the area.
3. That the person in charge of the installation is B.B.B.
4. That the camera is fictitious. Provide an invoice dated 04/16/2020 in the name of CATALA VISA S.L.U. where it is stated "fake camera with video surveillance objective".
FOUNDATIONS OF LAW I
In accordance with the investigative and corrective powers that Article 58 of Regulation (EU) 2016/679 (General Data Protection Regulation, hereinafter RGPD) grants to each control authority, and in accordance with the provisions of Article 47 of the
C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es
   
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 Organic Law 3/2018, of December 5, on the Protection of Personal Data and guarantee of digital rights (hereinafter LOPDGDD), the Director of the Spanish Agency for Data Protection is competent to resolve these investigative actions.
II
In the present case, we proceed to examine the claim dated 10/02/20 which brings about the “presence of a recording device that could affect public space” (folio no 1).
The events described may affect the content of article 5.1 c) RGPD, as it is allegedly capturing personal data from third parties that pass through public space.
The art. 5.1 c) RGPD provides the following: Personal data will be:
"Adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (" data minimization ").
It should be remembered that individuals are responsible for ensuring that the installed systems comply with current legislation, proving that it complies with all the requirements demanded by current regulations.
The installation of this type of device must have the mandatory informative poster, indicating the purposes and the person responsible for the treatment, where appropriate, of the personal data.
In any case, the cameras must be oriented towards the particular space, avoiding intimidating neighboring neighbors with this type of device, as well as controlling areas of transit without just cause.
Nor can public space image (s) be obtained with this type of device, as this is the exclusive competence of the State Security Forces and Bodies.
It should be remembered that even in the case of a “simulated” camera, it should preferably be oriented towards private space, since it is considered that this type of device can affect the privacy of third parties, who are intimidated by it. in the belief of being the object of permanent recording.
Individuals cannot install devices for obtaining images in public spaces, outside of the cases allowed in the regulations.
III
The present claim is subject to transfer to this body by the Catalan Data Protection Authority, considering that its analysis does not fall within its competence framework, being received on 10/02/20.
C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es

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 The device in question was installed in C / *** ADDRESS.1 of *** LOCALIDAD.1 (*** PROVINCE.1), having been installed by the tenant of the house, without any knowledge of the owner of the property, which he exempts from any responsibility.
The tenant of the property where the cameras were installed in writing dated 07/30/21 states that “they have proceeded to remove them”, these being at all times a dissuasive purpose.
Likewise, it provides as documentary evidence a copy of the invoice describing “False camera for video-surveillance purposes” arguing unfair acts for the installation of the same.
The installation of this type of deterrent device is not prohibited in our legal system, and their presence has proliferated due to the increase in vandalism against public property (eg graffiti, waste on sidewalks, etc.).
On occasions, this body has allowed the presence of this type of device, given the fact that a situation of strict compliance with the law entails a double punishment for the victim of this type of incivility, so that the consequences of the withdrawal of the cameras, suppose a greater damage as they are the patrimonial damages to the public furniture.
Faced with this type of situation, the presence of the device in question can be made known to the local Police, proceeding to adopt certain precautions when installing them (eg avoiding their orientation towards particular windows, etc).
Likewise, the Reports in this regard in relation to the installation of video surveillance cameras by City Councils can be consulted on the website of this Agency www.aepd.es "Reports and Resolutions" or in the Guide for the uses of video cameras for security and other purposes.
From the moment these types of devices are "simulated", it goes without saying that they do not carry out any "data processing" associated with an identified or identifiable natural person; although certain precautions must be taken in their installation so that third-party space is not affected in an unjustified manner.
IV
In accordance with the foregoing, it can be concluded that the purpose of the installation of the simulated device was none other than to avoid greater damage to the public heritage, being a false device equipped with a red LED light, for which it has not been accredited treatment of any personal data; all of them reasons that lead to the filing of this procedure.
Therefore, in accordance with the provisions, by the Director of the Spanish Agency for Data Protection,
C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es

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 HE REMEMBERS:
FIRST: PROCEED TO THE FILING of these actions.
SECOND: NOTIFY this resolution to the complaining and claimed party.
In accordance with the provisions of article 50 of the LOPDGDD, this Resolution will be made public once it has been notified to the interested parties.
Against this resolution, which puts an end to the administrative procedure as prescribed by art. 114.1.c) of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, and in accordance with the provisions of arts. 112 and 123 of the aforementioned Law 39/2015, of October 1, the interested parties may optionally file an appeal for reconsideration before the Director of the Spanish Data Protection Agency within a period of one month from the day following notification of this resolution or directly administrative contentious appeal before the Contentious-Administrative Chamber of the National Court, in accordance with the provisions of article 25 and section 5 of the fourth additional provision of the Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction, within a period of two months from the day following the notification of this act, in accordance with the provisions of article 46.1 of the aforementioned Law .
940-010921
Mar Spain Martí
Director of the AEPD, P.O. the Deputy Director General of Data Inspection, Olga Pérez Sanjuán, Resolution 4/10/2021
  C / Jorge Juan, 6 www.aepd.es 28001 - Madrid sedeagpd.gob.es