BVwG - W256 2230350-1/6E

BVwG - W256 2230350-1/6E
Court:	BVwG (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 6(1)(f) GDPR § 28(3)
Decided:
Published:	03.08.2022
Parties:
National Case Number/Name:	W256 2230350-1/6E
European Case Law Identifier:
Appeal from:	DSB (Austria) D124.1599 2020-0.112.372
Appeal to:	Unknown
Original Language(s):	German
Original Source:	RIS (in German)
Initial Contributor:	MW

The Austrian Federal Adminstrative Court reversed a decision by the Austrian DPA because it failed to establish essential facts. The Court ordered the DPA to investigate whether the data subject's neighbor had actually surveilled their property.

English Summary

Facts

The data subject and controller were neighbors, and the data subject filed a complaint with the Austrian DPA (DSB) alleging that the controller had processed their personal data without a legal basis by pointing a surveillance camera at their property.

The controller clarified that there were two cameras, one older, non-functional camera and another newer model that still worked and was directed towards the controller's door. A screenshot of the newer camera's field of view showed that only the controller's property was captured.

The data subject submitted as evidence two photos of the newer camera. The photos appeared to show that the camera had been moved and had at one point captured footage of the data subject's property.

The DPA upheld the data subject's complaint, and the controller appealed to the Austrian Federal Administrative Court (BVwG).

In their appeal, the controller argued the images submitted by the data subject showed the camera at completely different angles and distances. The first image was taken at a distance of 25 meters and as a result the camera was hardly recognizable. The controller claimed that no one had rotated or moved the camera, and it had never pointed towards the data subject's property.

Holding

The Court reversed the DPA's decision and referred the case back for a new analysis. The Court ordered the DPA to conduct its own investigation into whether the camera had ever captured the data subject's property. The Court cited Austrian procedural law (§ 28(3) VwGVG) which permits the Court to set aside a contested decision and refer the matter back to the authority if essential facts remain unestablished.

The Court reasoned that the DPA had upheld the data subject's complaint on the grounds that the controller had processed the data subject's personal data by recording their property with a surveillance camera. The fact that the DPA had failed to confirm whether this processing ever occurred constituted a serious gap in the facts. The Court pointed out that the DPA had even asked the controller to comment on the "supposition" ("Vermutung") that the camera had captured images of the data subject's property, but it had nevertheless based its entire decision on this supposition as if it were an established fact.

Comment

This decision is part of a pattern of cases in which the DSB has failed to establish the underlying facts resulting in a reversal by the BVwG.

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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.

decision date

06/28/2022

standard

B-VG Art133 Para.4
DSG §1
VwGVG §28 paragraph 3 sentence 2

saying

W256 2230350-1/6E

DECISION

The Federal Administrative Court has the judge Mag. Caroline Kimm as chairwoman, the expert lay judge Dr. Claudia Rosenmayr-Klemenz and the expert lay judge Mag. Adriana Mandl as assessors on XXXX's complaint against the decision of the data protection authority of February 21, 2020, GZ: D124.1599 2020-0.112.372, corrected by decision of March 12, 2020, GZ: D124.1599 2020-0.176.264 decided:

A) The contested decision is revoked in accordance with Section 28 (3) second sentence VwGVG and the matter is referred back to the data protection authority for the issue of a new decision.

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

text

Reason:

I. Procedure and facts:

In its complaint of October 23, 2019, addressed to the relevant authority, XXXX (hereinafter: co-participants) alleges a violation of its right to secrecy by its neighbor, the complainant. He installed surveillance cameras at his house. Since these would go exactly in their direction, the participants feel observed. It's a bad feeling when you think you're being filmed. According to the information provided by the complainant, the cause of those involved was not filmed. The co-participant nevertheless asks the relevant authority to check this. The complainant moved the cameras in March/April 2019 and now the distance to her property is even smaller. The complainant did not know whether the cameras would film the reason. Photos taken from the property of the parties involved were presented under one, which show a camera on the front door (image 1) and a camera under an overhanging roof out of focus.

In addition, the complainant stated in his statement of December 17, 2019 that the cameras - as he had already told the other parties involved - would not cover the neighboring property. There is no reason at all to do so. The camera on the front door does not capture the neighbor's property and is only installed for self-protection. The camera in the garden, under the roof overhang, is only aimed at private property and has no function whatsoever, since it is an old, cheap model that cannot connect to the router. This camera was therefore removed from the front door more than a year ago and replaced with the new camera. However, the position in the distance was not changed. Rather, the old, non-functioning camera was only installed about 1 m further to the left. A photo (image 2) and a screenshot of the camera on the front door are presented under one. This clearly shows that only the private area is filmed. The authority concerned can also carry out an assessment on site.

In her email dated January 23, 2020, the other party asked about the status of the proceedings. The complainant had meanwhile turned the camera so that it was no longer pointing in her direction.

As a result, in a letter dated February 1, 2020, the authority concerned was granted a hearing on the complainant’s letter.

In an email dated February 2, 2020, the other party submitted that the complainant had changed the angle of the camera about a week before Christmas, to the position that he had sent with his statement. In this respect, she asks whether the complainant cannot therefore be held accountable?

With the contested decision, the complainant's complaint was followed and it was found that the complainant had violated the co-involved party's right to secrecy by the recording range of his camera also covering the complainant's property until December 2019. The authority concerned found that the complainant had installed two cameras on his house, with the camera under the roof overhang being inoperative. In December 2019, in the course of the proceedings before the authorities concerned, the complainant changed the orientation of the camera above the entrance to the building (Image 1) (Image 2). The field of view of the camera above the entrance to the house had extended beyond the complainant's property before the camera angle was changed. This results from the images provided for the alignment of the camera and the screenshot provided. The recording area must have moved further to the right before the camera angle changed and thus also covered the property of the participants. The fact that the camera under the roof overhang was inoperable resulted from the complainant's credible submissions. The proceedings also gave no indication of the complainant's motives for monitoring the property of those involved. Legally, the authority concerned explained that the processing of personal data using image processing systems to protect property in the private sector can in principle be based on the provision of Article 6 Paragraph 1 lit. f GDPR. According to the principles for the processing of personal data according to Article 5 GDPR, in particular the principle of data minimization according to Article 5 Paragraph 1 lit . Insofar as the complainant's camera, which is the subject of the proceedings, also captured the property of the other parties involved before the change in orientation in December 2019, the complainant violated the principle of data minimization, which is why the complaint was to be allowed.

With the notification of March 12, 2020, D124.1599 2020-0.176.264, the notification was canceled due to incorrect formatting of the images reproduced in the factual findings, which led to an incorrect display of the first image due to the correct display of the image (image 1) corrected ex officio according to § 62 para. 4 AVG.

The present appeal by the complainant is directed against the (corrected) decision. In it, the complainant essentially argues that the two images in the decision show the camera from completely different angles and distances. Image 1 submitted by the party involved was taken from a distance of 25 m and the camera was hardly recognizable. Neither the complainant nor others rotated the camera in December 2019, and there was no reason to do so. The fact that the camera was further to the right before December 2019 and in this respect recorded the property of the participants is therefore not correct. The statements made by those involved in their ad that the cameras were pointing in their direction are also incorrect. This is clearly visible in the photos submitted. It is also incorrect that the camera was moved in its distance.

The authority concerned submitted the complaint together with the administrative act to the Federal Administrative Court and submitted a counter-document.

II. Evaluation of evidence: The course of the procedure and the facts described above result from the submitted administrative act.

III. The Federal Administrative Court considered:

Legal assessment:

Regarding A) According to Section 1 (1) sentence 1 DSG, everyone is entitled to confidentiality of personal data concerning them, in particular with regard to respect for their private and family life, insofar as there is a legitimate interest in doing so.

As can be seen from § 1 DSG, a violation of the right to data protection requires the processing of data relating to a specific person ("personal").

In the present case, the competent authority found that the complainant had processed the images of those involved with the contested decision, but without even dealing with it in the course of an investigation.

The authority concerned asked the complainant to comment on the "supposition" of those involved that they were being filmed by the complainant using a camera. However, the complainant always stated in his statements that he had never recorded the reason for the other parties involved using a camera he had installed above the entrance to the building.

The authorities responsible did not (or no longer) take part in the necessary further examination of the image recording, which was (merely) suspected by the co-involved party but disputed by the complainant.

Accordingly, there is no - at least no comprehensible - justification in the contested decision as to why the authority concerned assumes that the image processing of the co-participants was carried out by the complainant by December 2019 at all.

The mere assumption of those involved in their complaint and in their further statement that they were filmed by the complainant using cameras up to December 2019 is in any case not suitable in itself, data processing affecting them and thus a violation of their right to secrecy is suitable to show The photos of the cameras presented in the proceedings, which are otherwise blurred, do not change this, because the only decisive detection area of a camera cannot be shown in this way.

Without knowledge of the data processing by the complainant, it is not possible to assess whether the right to data protection has been violated at all.

According to Section 28 (3) second sentence VwGVG, the administrative court can set aside the contested decision and refer the matter back to the authority for the issue of a new decision if the authority has failed to carry out the necessary investigations into the facts. According to Section 28 Paragraph 2 Number 2, this procedure presupposes that the determination of the relevant facts by the administrative court is not in the interest of speed or is associated with significant cost savings.

In its decision of June 26, 2014, Zl. Ro 2014/03/0063, the Administrative Court held that a remittal of the matter to the administrative authority to carry out the necessary investigations under § 28 Para. 3 second sentence VwGVG should be considered in particular will occur if the administrative authority has failed to carry out any necessary investigative activity, if it has only taken completely unsuitable investigative steps to determine the relevant facts or has only carried out a preliminary investigation. The same applies if concrete indications suggest that the administrative authority failed to carry out (e.g. difficult) investigations so that these can then be carried out by the administrative court (cf. also the decision of the Administrative Court of January 25, 2017, Zl. Ra 2016/12/0109, 18ff.).

The fact that the relevant authority in the present case affirmed a violation of the co-participants' right to secrecy due to image processing carried out by the complainant in the past, without even dealing with image processing affecting the co-participants at all, the facts of the case are therefore in an essential point remained extensively in need of supplementation, which is why, with regard to this particularly serious investigation gap, a referral back in accordance with Section 28 (3) second sentence VwGVG is necessary and also justified (cf. the decision of the Administrative Court of October 20, 2015, Zl. Ra 2015/09/0088 ).

A catch-up on the preliminary investigation and thus a first determination and assessment of the relevant facts by the Federal Administrative Court cannot be within the meaning of the law. It is not apparent that immediate further taking of evidence by the Federal Administrative Court would be "in the interests of speed or associated with significant cost savings" - also in view of the increased effort associated with the Federal Administrative Court complaints procedure as a multi-party procedure.

The requirements of Section 28 (2) VwGVG are therefore not met in the case at hand. Consequently, the procedure for a new decision had to be referred back to the relevant authority.

In the continued proceedings, the authority concerned will therefore (suitably) deal with and discuss image processing of the co-participants by the complainant in the past.

In the present case, an oral hearing could be omitted in accordance with § 24 para. 2 no. 1 VwGVG because it was already clear from the file situation that the contested decision was to be "repealed". This fact is also applicable to resolutions for annulment and remittal (cf. on the similar earlier legal situation Hengstschläger/Leeb, AVG [2007] § 67d Rz 22).