Datainspektionen - DI-2019-7782

From GDPRhub
Datainspektionen - DI-2019-7782
LogoSE.png
Authority: Datainspektionen (Sweden)
Jurisdiction: Sweden
Relevant Law: Article 5(1)(a) GDPR
Article 6(1) GDPR
Article 9(2) GDPR
Article 13 GDPR
Article 35 GDPR
Article 36 GDPR
Kamerabevakningslagen (2018:1200)
Type: Complaint
Outcome: Upheld
Decided: 24.11.2020
Published: 24.11.2020
Fine: 200000 SEK
Parties: n/a
National Case Number/Name: DI-2019-7782
European Case Law Identifier: n/a
Appeal: n/a
Original Language(s): Swedish
Original Source: Datainspektionen (in SV)
Initial Contributor: Elisavet Dravalou

The Swedish DPA (Datainspektionen) held that installation of CCTV cameras in an LSS home (housing with special services for adults) breached Articles 5(1)(a), 6(1), 9(2), 13, 35 and 36 GDPR and Section 15 Camera Surveillance Act. The DPA imposed a fine of SEK 200,000 (approx. €19500).

English Summary[edit | edit source]

Facts[edit | edit source]

On 2 May 2019, the Swedish DPA received a complaint from a relative of the data subject according to which Gnosjö's Social Affairs Committee (Socialutskott) processes personal data of a resident at one of the municipality's LSS homes (housing with special services for adults), through CCTV cameras. The Social Affairs Committee placed the CCTV cameras to increase the security of the resident, as the resident has demonstrated serious self-harming behaviour.

Dispute[edit | edit source]

The complainant claimed that the Social Affairs Committee should have stated that CCTV camera surveillance takes place and ask the consent from the resident's family or guardian.

Holding[edit | edit source]

The Swedish DPA held that, although the intention of the Social Affairs Committee was to protect the resident from harming himself, the installation of CCTV cameras in the resident's bedroom is considered a big intrusion of the resident's privacy. This means that the processing of personal data has been disproportionate to the purpose. The processing of personal data that has taken place through the camera surveillance has thus not complied with Articles 5(1)(a)(i), 6, 9(2), and 13 GDPR.

Comment[edit | edit source]

Share your comments here!

Further Resources[edit | edit source]

Share blogs or news articles here!

English Machine Translation of the Decision[edit | edit source]

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


Page 1
Decision
Diarienr
1 (22)
2020-11-24
DI-2019-7782
Postal address: Box 8114, 104 20 Stockholm
E-mail: datainspektionen@datainspektionen.se
Website: www.datainspektionen.se
Phone: 08-657 61 00
Gnosjö Municipality - Social Affairs Committee
Supervision according to the EU Data Protection Regulation
2016/679 - camera surveillance on an LSS
accommodation
Table of Contents
The Data Inspectorate's decision ................................................ ................................... 3
Administrative penalty fees ................................................ .................... 3
Report on the supervisory matter ............................................... ........................... 4
Background ................................................. .................................................. .. 4
What has emerged in the case ............................................. .................... 4
Motivation for decision ............................................... .............................................. 5
Personal data controller ................................................. .................................. 5
What rules apply to camera surveillance ............................................. ........... 6
The Data Inspectorate's assessment ................................................ .................. 6
Basic principles for the processing of personal data (Article 5) ...... 7
The Data Inspectorate's assessment ................................................ ................... 7
Legal basis for the processing of personal data (Article 6) ................... 9
The Data Inspectorate's assessment ................................................ ................. 10
Processing of sensitive personal data (Article 9) ...................................... 11
The Data Inspectorate's assessment ................................................ .................. 13
Impact assessment and prior consultation (Articles 35 and 36) ................. 13
The Data Inspectorate's assessment ................................................ ................. 15
Information for registered ............................................... .......................... 16
The Data Inspectorate's assessment ................................................ ................. 18
Choice of intervention ............................................... ................................................ 19
Legal regulation ................................................ ........................................... 19
Penalty fee ................................................. ............................................. 20
Page 2
The Data Inspectorate
DI-2019-7782
2 (22)
Appendix ................................................. .................................................. .......... 21
Copy for information to: ............................................. .................................. 21
How to appeal ............................................... ........................................... 21
Page 3
The Data Inspectorate
DI-2019-7782
3 (22)
The Data Inspectorate's decision
The Data Inspectorate states that Gnosjö Municipality - Social Affairs Committee below
the period March 2019 - April 2020, the camera has monitored a resident of an LSS
living 1 in her bedroom and thereby processed personal data in violation of
- Article 5 (1) (a) of the Data Protection Regulation 2 when the camera surveillance took place
without legal basis and legal support for the treatment of
personal data ie. not been legal. That the camera surveillance has been performed
in a way that is more intrusive to the resident's personal privacy than what
which can be considered reasonable, reasonable and proportionate in relation to
the purpose, ie. did not live up to the requirements of accuracy as well as that
the camera surveillance took place without the resident being prescribed
information either under the Data Protection Regulation or
the Camera Surveillance Act, ie. did not live up to the requirements of transparency.
Article 6 (1) by processing personal data without having any
legal basis for it,
Article 9 (2) by processing sensitive personal data on
disease and health condition without having legal support for it
the treatment,
Articles 35 and 36 by failing to meet the requirements of a
impact assessment and not have prior consultation with
The Data Inspectorate and
Article 13 by failing to comply with the information requirement
registered (the resident) and
§ 15 of the Camera Surveillance Act (2018: 1200) by not having left
information about the camera surveillance through clear signage or on
any other effective way.
Administrative penalty fees
The Data Inspectorate decides by decision pursuant to Articles 58 (2) and 83 i
the Data Protection Ordinance, Chapter 6 Section 2 of the Act (2018: 218) with supplementary
provisions of the EU Data Protection Regulation and § 25 point 4 i
Camera Surveillance Act (2018: 1200) that Gnosjö Municipality - Social Affairs Committee for
1 Housing with special service according to law (1993: 387) on support and service to certain
handicapped.
2 REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016
on the protection of individuals with regard to the processing of personal data and on that
free flow of such data and repealing Directive 95/46 / EC (General
Data Protection Regulation).
Page 4
The Data Inspectorate
DI-2019-7782
4 (22)
infringements of Article 5 (1) (a), Article 6 (1), Article 9 (2), Article 13, Article 35 and
Article 36 of the Data Protection Ordinance and Section 15 of the Camera Surveillance Act shall
pay an administrative penalty fee of SEK 200,000.
Report on the supervisory matter
Background
On 2 May 2019, the Data Inspectorate received a report from another relative
a resident of an LSS residence in Gnosjö municipality according to which the social committee in
Gnosjö municipality (hereinafter the social committee) processes personal data through
to camera monitor a resident at one of the municipality's LSS homes. According to
notification, the social committee must have stated that the camera surveillance takes place with support
of an approval / consent from the resident's family and former
trustee of the resident. There is no approval / consent according to
the submitter of the notification.
The Data Inspectorate has due to the information that the notification contains
initiated supervision for the purpose of reviewing the processing of personal data which
the social committee must have carried out through camera surveillance is in accordance with
the data protection rules and the camera surveillance law.
The supervisory case began with a supervisory letter on 15 July 2019. Answer to
The supervisory letter was received on 21 August 2019. Supplementary letters from
The Social Affairs Committee has been received on 2 December 2019, 11 May 2020, 12
August 2020 and November 4, 2020.
What has emerged in the case
The Social Affairs Committee has processed personal data by real-time
camera monitor a resident of an LSS residence in order to increase the security of it
accommodation. The camera was installed in March 2019 and surveillance ceased on the 29th
April 2020 in connection with the business being taken over by another contractor.
The Social Affairs Committee has stated the following. The resident has lived in the LSS accommodation
since the autumn of 2013. He needs support in his everyday life around the clock from two people,
when he exposes himself to serious self-harming behavior and needs help to
prevent this. In emotionally difficult situations, he wants to be himself in his own
bedroom with closed door, the staff has then been in the living room and
been prepared to enter if necessary. It has happened that it has become completely quiet inside
Page 5
The Data Inspectorate
DI-2019-7782
5 (22)
at the resident's and when staff have opened the door to see how they are doing
he slept but was awakened when the door was opened. The resident has then again become
emotionally upset and risk of self-harming behavior has existed. At others
On several occasions it has happened that the resident seriously injured himself without
staff have heard something.
During the resident's first time at the LSS accommodation, there were periodically three staff members
service, despite this, it happened several times to both the resident and the staff
was injured. There have been such serious incidents that it has involved one
great danger to her life. After the staff group has received both training and
guidance, the business decided that it is better for the resident to
only have two staff on duty around the clock and they have been working since the spring
2014. The staff has noticed that when the resident becomes anxious and shows signs of
wanting to harm themselves, staff or things, it passes more quickly if they
lets him be alone in his bedroom.
Since the camera was installed, there have been no serious incidents
when the resident has been alone in the bedroom. The staff was able to quickly
pay attention to what he had in mind and they have not had to disturb when
he came to rest. The fact that the camera is installed does not mean a reduction of
the number of staff on duty; they are always double-staffed around the clock.
The camera is only used in real time to see how the resident is feeling, nothing
material is saved. There is also no sound recording. If the resident wants
staff inside their room, the staff is there and the camera is not used.
Justification of decision
Personal data manager
The Social Affairs Committee has stated that the Social Affairs Committee is responsible for personal data
the processing of personal data that has taken place through camera surveillance of
a home in one of the municipality's LSS homes. This is supported by
the inquiry where it appears that it is the Social Affairs Committee that decides on
camera surveillance and specific purpose and means with
personal data processing.
Page 6
The Data Inspectorate
DI-2019-7782
6 (22)
What rules apply to camera surveillance
Camera surveillance is a form of personal data processing.
The Camera Surveillance Act (2013: 460), to which the Social Affairs Committee referred,
was replaced on 1 August 2018 by the Camera Surveillance Act (2018: 1200) and it
now applies in its place. How and to what extent it is allowed to
camera surveillance is thus regulated in the Data Protection Regulation and
the Camera Surveillance Act (KBL), which supplements the Data Protection Ordinance.
Section 2 of the KBL states that the purpose of the law is to meet the need for
camera surveillance for legitimate purposes and to protect natural persons
against undue invasion of privacy during such surveillance.
The definition of camera surveillance in § 3 KBL means, among other things, that it should
be a matter of equipment, which without being maneuvered on site, is used on a
methods that involve permanent or regular repeated personal surveillance
According to § 7 KBL, a permit is required for camera surveillance of a place there
the public has access, if the surveillance is to be conducted by an authority.
The Social Affairs Committee is an authority and must therefore be based on it
permission to camera-monitor a place to which the public has access. The question is
then if the public is considered to have access to the seat of the Social Affairs Committee
camera guards. Practice shows that the concept of “place where the public has
access ”shall be interpreted broadly (see the Supreme Administrative Court's decision RÅ 2000 ref.
52).
The Data Inspectorate's assessment
The Data Inspectorate states that this is a matter of lasting and regular
repeated personal surveillance, with a camera that is not operated on the spot,
when the social committee uses camera surveillance and films a resident
an LSS home, in his bedroom, in real time.
In the light of what has emerged about the location of the surveillance, it
living room, the Data Inspectorate assesses that it is not a question of a place
to which the public has access. There is thus a requirement to apply for a permit
not. The fact that the camera surveillance is unlicensed only means that the rules in
the Camera Surveillance Act if a permit for camera surveillance does not apply. Other
rules in the Camera Surveillance Act apply just as for those subject to a permit
camera surveillance, such as rules on professional secrecy and information and when
Page 7
The Data Inspectorate
DI-2019-7782
7 (22)
the camera surveillance includes personal data processing, the rules in
the Data Protection Regulation.
Basic principles for the processing of personal data (Article 5)
Article 5 of the Data Protection Regulation contains a number of basic principles
which the data controller must take into account when processing
personal data.
The data controller has, in accordance with Article 5 (2) of the Data Protection Regulation
responsibility for compliance with the Regulation and must be able to demonstrate that they
basic principles are followed.
It follows from Article 5 (1) (a) that all processing of personal data must be lawful;
correct and characterized by openness. That the treatment must be correct means
that it should be fair, equitable, reasonable and proportionate in relation to them
registered.
Article 5 (1) (c) regulates the principle of data minimization, which means that:
personal data processed to be adequate, relevant and not for
extensive in relation to the purposes for which they are treated.
It follows from recital 39 that personal data should only be processed for the purpose of
the treatment cannot reasonably be achieved by other means.
The Data Inspectorate's assessment
In assessing whether the treatment is proportionate, the need for
to carry out the treatment is weighed against the intrusion into the individual's personal
integrity. Regarding the need for processing, the Data Inspectorate can
note that the information provided by the Social Affairs Committee shows that it
residents' illness creates great difficulties both for themselves and for
staff, and that situations have arisen where there has been a risk of
the resident's life and health. It has also happened that staff have been added
damage. The inquiry into the matter supports the Social Affairs Committee's assessment that it has
there has been a need to take action to manage and improve
the situation. The problem that has arisen before and that the municipality has
managed to curb through the camera surveillance, consists in that when the resident becomes
upset is calmed down best by being able to retreat and be alone in
the bedroom, while at the same time there is the greatest risk of him injuring himself
Page 8
The Data Inspectorate
DI-2019-7782
8 (22)
himself seriously. There has thus been a need to be able to have the resident
under supervision without being disturbed by the staff.
At the same time, the Data Inspectorate finds that the current camera surveillance
means that the resident is monitored by a camera in his bedroom. It is thus a question of
a very privacy-sensitive processing of personal data which means that
the resident is monitored in the home's most private sphere. The Data Inspectorate
assesses that the camera surveillance has entailed a significant intrusion into it
residents' privacy.
In order for such surveillance to be judged to be an acceptable intrusion into
personal integrity, alternative measures must first be ruled out.
The Data Inspectorate states that the Social Affairs Committee has previously taken measures
in the form of e.g. guidance, to try to improve the situation. It appears
however, not by the inquiry that the Social Affairs Committee has tried to fulfill precisely
the need to keep the resident under surveillance without risking disturbance;
with less intrusive measures than through camera surveillance. According to
The Data Inspectorate's assessment should be possible for the Social Affairs Committee to
with relatively simple and less intrusive measures
same needs as with camera surveillance.
Against this background, the Data Inspectorate finds that the Social Affairs Committee does not have
shown that the interest in camera surveillance exceeds the resident's right to
privacy and a protected private sphere. The Data Inspectorate states
that the way in which the camera surveillance was carried out entailed an extensive
monitoring of the resident that has led to a significant intervention in the resident
privacy. This means that the processing of personal data, ie.
camera surveillance, has been disproportionate to the purpose. The
processing of personal data that has taken place through the camera surveillance has
thus not living up to the requirements of correctness in Article 5 (1) (a)
the Data Protection Regulation. As the Data Inspectorate states in the following in
the justification under the headings Legal basis for the treatment of
personal data (Article 6), Processing of sensitive personal data (Article
9) and Information to the data subjects has the processing of personal data
without a legal basis in Article 6 (1), without support in Article 9 (2) and without
demonstrated that the resident has received information in accordance with Article 13 of the
the regulation and also not in accordance with the requirements of the Camera Surveillance Act. The
means that the Social Affairs Committee can also not be considered to have lived up to the requirements in Article
5.1 (a) of the Data Protection Regulation on legality and transparency.
Page 9
The Data Inspectorate
DI-2019-7782
9 (22)
Legal basis for the processing of personal data (Article 6)
According to Article 5 (1) (a) of the Data Protection Regulation, personal data must be processed
legally. In order for the treatment to be considered legal, it is required that
at least one of the conditions of Article 6 (1) is met.
The Social Affairs Committee has stated that the legal basis applicable to it
The current personal data processing is that the processing is necessary to
perform a task of general interest in accordance with Article 6 (1) (e)
the Data Protection Regulation. The provision of social services is one such
information of general interest referred to in Article 6 (1) (e)
the legal basis of general interest and the exercise of authority
Member States in accordance with Article 6 (2) maintain or introduce more specific
provisions to adapt the application of the provisions of
Regulation to national circumstances. National law can be closer
establish specific requirements for data processing and other measures to:
ensure legal and fair treatment. But there is not just one
possibility to introduce national rules but also an obligation; Article 6.3
states that the basis for the treatment referred to in paragraph 1 (c) and (e) shall be:
determined in accordance with Union law or the national law of the Member States.
The legal basis may also contain specific provisions to:
adapt the application of the provisions of the Data Protection Regulation.
The law of the Union or the national law of the Member States shall fulfill an objective of:
public interest and be proportionate to the legitimate aim pursued.
This means that additional provisions in national law are required by
which the basis for the treatment is determined. Recital 41 states that one
legal basis or legislative action should be clear and precise and its
application should be predictable for persons covered by it.
For the processing of personal data in the activities of the social services is established
the basis for the treatment in section 6 of the Act (2001: 454) on the treatment of
personal data within the social services (SoLPuL). It is clear from that provision
that personal data may only be processed if the processing is necessary to
tasks within the social services must be able to be performed.
The preparatory work for the Data Protection Act develops what recital 41 entails
supplementary national legislation (Bill 2017/18: 105 New Data Protection Act
p. 51).
Page 10
The Data Inspectorate
DI-2019-7782
1 0 (22)
What degree of clarity and precision is required in terms of it
legal basis for a certain processing of personal data
should be considered necessary must in the opinion of the Government
assessed on a case-by-case basis, based on the treatment and
the nature of the business. It should be clear that a treatment of
personal data that does not constitute an actual violation of it
personal integrity, such as in the treatment of
students' names in regular school activities, can be done with the support of a
legal basis which is generally held. A more tangible intrusion,
for example processing of sensitive personal data in health and
healthcare, requires that the legal basis be more precise
thus making the intrusion predictable. If the intrusion is
significant and involves monitoring or mapping it
individual personal circumstances are also required in particular
legal support according to ch. 2 6 and 20 §§ RF.
This means that the requirements for the supplementary national regulation
in terms of precision and predictability increases when it comes to one more
tangible intrusion. If the intrusion is significant and involves surveillance or
mapping of the individual's personal circumstances, which the current
the treatment does, special legal support is also required according to ch. Sections 6 and 20
form of government.
The Data Inspectorate's assessment
The Data Inspectorate finds that § 6 SoLPuL is a fairly broad and
unspecified provision which forms the basis for the processing of personal data
in a large number of areas. According to the Swedish Data Inspectorate's assessment,
individuals by the provision anticipate that the social services treat large
amounts of privacy-sensitive information about individuals in their business, such as
for example in case processing. However, it can not be assumed that
individuals can anticipate that the Social Services may also perform
privacy-sensitive camera surveillance. Against the background of that
camera surveillance is an extremely privacy-sensitive treatment and that it
thus, high demands are placed on national regulations regarding precision and
predictability, the Data Inspectorate assesses that the legal basis in § 6
SoLPuL cannot constitute a supplementary national provision to it
the legal basis of Article 6 (1) (e) of the Data Protection Regulation in this case
privacy-sensitive camera surveillance.
Page 11
The Data Inspectorate
DI-2019-7782
1 1 (22)
In addition, § 6 SoLPuL requires that the treatment is necessary to perform
a task within the social services. Regarding the meaning of the term
necessary, the following appears from the preparatory work for the Data Protection Act (Bill.
2017/18: 105 p. 51).
According to the Swedish Academy's Dictionary, the Swedish word means
necessary that something absolutely required or can not
omitted. However, the concept of Union law does not have this
strict meaning. Necessity requisites in Article 7 i
The Data Protection Directive has e.g. not considered to be a requirement that
it must be impossible to perform a task of general interest
without the treatment measure being taken (Bill 2017/18: 105 p. 46).
Even if the necessity requirement does not mean that it should be impossible to perform
a task of general interest if the treatment is not carried out, it may
according to the Data Inspectorate's assessment is not considered necessary to
carry out a privacy-sensitive processing of personal data via
camera surveillance if there are other reasonable options for performing one
task that serves the same purpose. As the Data Inspectorate previously stated
the social committee should be able to live up to the purpose of the camera surveillance
in a different way than with just camera surveillance. Thus, neither is the requirement
that the treatment shall be necessary for the complementary national
the regulation in § 6 SoLPuL shall be applicable fulfilled.
The Social Affairs Committee has thus dealt with the camera surveillance
personal data without having a legal basis for the processing under Article
6.1 of the Data Protection Regulation. Any other legal basis for the treatment
under Article 6 (1) has also not been shown to exist.
Processing of sensitive personal data (Article 9)
It follows from Article 9 (1) of the Data Protection Regulation that health information constitutes a
special category of personal data ( so-called sensitive personal data).
The main rule is that the processing of such personal data is prohibited. IN
Article 9 (2) sets out a number of exceptions for sensitive personal data
treated.
The Social Affairs Committee has stated that the camera may monitor situations in
which the resident's disease picture and state of health appear. It means
Page 12
The Data Inspectorate
DI-2019-7782
1 2 (22)
that the current camera surveillance at the LSS accommodation includes treatment of
health information ie. sensitive personal data.
In order for a processing of sensitive personal data to be legal, both are required
a legal basis under Article 6 (1) and that any of the exceptions to the prohibition
the processing of sensitive personal data in Article 9 (2) is applicable. Already it
the fact that the Social Affairs Committee has carried out the camera surveillance without
having a legal basis for the proceedings under Article 6 (1) means that
processing has been in breach of Article 9 of the Data Protection Regulation.
If, on the other hand, there had been a legal basis for the treatment under Article
6.1, the Social Affairs Committee would thus also have had to apply some of the exceptions in
Article 9 (2) for the processing of personal data to be lawful.
Article 9 (2) (h) states that the processing of sensitive personal data may take place if
the treatment is necessary for reasons related to /… / social care
or management of health services and social care and by
their system, on the basis of Union law or the national law of the Member States
right or under agreements with health professionals and under
provided that the conditions and safeguard measures referred to in paragraph 3 are
fulfilled.
In order for the derogation in Article 9 (2) (h) to apply, it is therefore necessary
supplementary rules of Union or national law. In Swedish law has
the possibility of processing sensitive personal data in the social services
activities are regulated in § 7 (3) SoLPuL. It is clear from that provision that
sensitive personal data may be processed on the basis of Article 9 (2) (h)
the Data Protection Regulation if the information has been provided in a case or is
necessary for the business and provided that the requirement of
confidentiality in Article 9 (3) of the Data Protection Regulation is fulfilled.
For the processing of sensitive personal data in accordance with Article 9 of the
the regulation thus places even higher demands on the complementary national
the regulation regarding precision and predictability for it to be
applicable. Then the generally formulated national regulation can not be considered
live up to the requirements of precision and predictability and thus constitute
legal basis for the processing of non-sensitive personal data by
camera surveillance, nor can it in a similar way in general
drafted the national provision on the treatment of sensitive
Page 13
The Data Inspectorate
DI-2019-7782
1 3 (22)
personal data is considered to live up to the requirements of precision and predictability.
The provision in § 7 SoLPuL can thus not constitute such a supplement
national law required for the derogation in Article 9 (2) (h) of the
this Regulation shall apply to the processing of sensitive personal data
through camera surveillance.
In addition, section 7 of SoLPuL also requires that the information has been submitted in one
case or are necessary for the business for the provision to be able to
apply. Then the processing of personal data does not refer to a case but
camera surveillance is an actual act, the information must be
necessary for the activity may be that the treatment can be performed.
However, since the necessity requirement cannot be considered fulfilled
regarding the requirement of a legal basis for the processing of personal data, it may
is also not considered to be fulfilled with regard to the exemption in Article 9 (2) (h) against
the ban on the processing of sensitive personal data.
The Data Inspectorate's assessment
Even if the Social Affairs Committee had a legal basis under Article 6 (1) (i)
the Data Protection Regulation, fulfills the processing of personal data by
In summary, camera surveillance does not require one in Article 9 (2)
applicable exemption from the ban on treating sensitive
personal data. The Data Inspectorate thus assesses that Gnosjö municipality
by camera-watching situations where the disease picture and health condition
sensitive data has been processed in breach of Article 9 (1) and
9.2 of the Data Protection Regulation.
Impact assessment and prior consultation (Articles 35 and 36)
It follows from Article 35 of the Data Protection Regulation that a personal data controller in
some cases must make an impact assessment regarding data protection, ie. before
the processing of personal data make an assessment of a planned
processing consequences for the protection of personal data. The obligation applies
on a type of treatment, in particular with the use of new technologies and with
taking into account its nature, scope, context and purpose, is likely to lead
to a high risk to the rights and freedoms of natural persons.
Article 35 (7) sets out what an impact assessment should include. It will
at least include a description of the planned treatment and
the purposes of the treatment, an assessment of the need for and proportionality
in the processing, an assessment of the risks to the data subjects' rights
Page 14
The Data Inspectorate
DI-2019-7782
1 4 (22)
and freedoms as well as the measures planned to manage the risks and demonstrate that
the Data Protection Regulation is complied with.
An impact assessment can thus be described as a tool for
identify risks with the processing of personal data and develop routines
and measures to manage the risks, and thus assess the treatment
is proportionate to its purpose. To implement one
Impact assessment before starting treatment is thus often an important one
action to assess whether a treatment is lawful.
According to Article 36, the controller shall consult:
The Data Inspectorate before the processing of an impact assessment regarding
data protection under Article 35 shows that the processing would lead to a high risk
unless the data controller takes measures to reduce the risk.
The European Data Protection Board, EDPB 3 , has developed guidelines 4 regarding i
what situations a treatment is likely to lead to a high risk of physical
freedoms and rights of persons. The guidelines set out nine criteria to be considered
in assessing whether a processing of personal data is likely to lead to
a high risk for the data subject. If two of the criteria are met, it can
personal data controller in most situations assume that a
impact assessment should be performed, but also a treatment that only
meets one of these criteria may in some cases require an impact assessment.
Conversely, two or more of the criteria in the guide may be met but
the data controller can still make the assessment that the processing
probably does not lead to a high risk to the data subject's freedoms and rights. IN
such situations, the controller should justify and
document the reasons why an impact assessment is not carried out and
include the views of the Data Protection Officer.
The Data Inspectorate has, on the basis of guidelines from Article 29-
the working group and the criteria developed by the group, a
list of personal data processing covered by requirements for
impact assessment regarding data protection (2019-01-16, dnr DI-2018-13200).
The list complements and specifies Article 35 (1) and is intended to:
3 European Data Protection Board, formerly the Article 29 Working Party.
4 Guidelines on impact assessment regarding data protection and determining whether
the treatment "is likely to lead to a high risk" within the meaning of the Regulation
2016/679, WP 248 rev. 01.
Page 15
The Data Inspectorate
DI-2019-7782
1 5 (22)
further exemplify when the conditions in that provision can be considered
be met. The list is not intended to be exhaustive
when an impact assessment needs to be made. Criteria to be considered in
the assessment of whether a planned treatment is likely to lead to a high risk is
including whether the treatment concerns systematic monitoring of humans,
sensitive data or data of a very personal nature, data on
vulnerable persons or the use of new technologies or new organizational ones
solutions.
An impact assessment must be made of at least two of those on the list
the listed points are included in the planned treatment. It is
only mandatory to perform an impact assessment on the planned
the treatment ”is likely to lead to a high risk to the rights of natural persons
and freedoms ”. A treatment can meet two or more of the criteria but it
personal data controller can still make the assessment that it is unlikely to
leads to a high risk. In such situations, the person responsible for personal data should
justify and document the reasons for an impact assessment
not performed and include the views of the Data Protection Officer. In the end of
The Data Inspectorate's list is also given examples of when at least two of
the criteria must be considered to exist and thus when an impact assessment
must be done. Examples are given when activities in social care
uses camera surveillance in people's homes.
The Social Affairs Committee has stated that they have not made any impact assessment
because they do not save information from the camera surveillance. The Social Affairs Committee
has also not submitted any request for prior consultation
The Data Inspectorate.
The Data Inspectorate's assessment
The Data Inspectorate states that criteria that must be taken into account in the assessment
of whether a treatment is likely to lead to a high risk is whether the treatment is intended
systematic monitoring of people, sensitive data or data of
very personal in nature, information on vulnerable persons or the application of
new technology or organizational solutions.
The Swedish Data Inspectorate's list shows that when activities within social
care uses welfare technology, e.g. robots or camera surveillance, in
people's housing, it is an example of treatment that requires one
impact assessment is performed. Then the criteria are considered systematic
Page 16
The Data Inspectorate
DI-2019-7782
1 6 (22)
monitoring, processing of sensitive personal data and use of new
technology or new organizational solutions be met.
According to the Data Inspectorate's assessment, the treatment in question has included
a number of criteria suggest that the treatment is likely to lead to a high
risk to the data subject's freedoms and rights. An explicit example in
The Data Inspectorate's list of when impact assessment is required according to
The Data Protection Regulation is when activities in social care, as in this
cases, use camera surveillance in people's homes. Then the Social Affairs Committee does not
has presented its assessment of not carrying out an impact assessment
it has not shown that the treatment is unlikely to lead to a high risk, although
several of the criteria in the guidelines are met. According to the Data Inspectorate
assessment, the social committee has thus processed personal data in violation of
Article 35 of the Data Protection Regulation.
Based on what has emerged in the case, the Social Affairs Committee has not either
submitted with a prior consultation. Because the Social Affairs Committee has not done any
impact assessment, no assessment has been made of whether
the processing entailed some risks to the data subject's freedoms and rights.
Thus, the Social Affairs Committee has also not been able to show that the high risk that
likely to have been lowered in such a way that there has been no reason
to request prior consultation with the Data Inspectorate. According to the Data Inspectorate
assessment, the social committee's processing of personal data thus also has
in breach of Article 36 of the Data Protection Regulation.
Information for registered
Article 13 of the Data Protection Regulation sets out the information to be provided
provided if personal data is collected from the data subject, such as
information on identity and contact details of the personal data
responsible, the purposes of the processing for which the personal data is
intended, the legal basis, the period during which the personal data
will be stored as well as the data subject's rights.
Article 12 of the Data Protection Regulation states that
the data controller shall take appropriate measures to enable it
registrants provide all the information referred to in Article 13, and that such
information must be provided in a concise, clear, concise, comprehensible and easy
available form and using clear and distinct language.
The information must be provided in writing or in some other form. For reasons
Page 17
The Data Inspectorate
DI-2019-7782
1 7 (22)
58 of the Data Protection Regulation states that information must be concise,
easily accessible and easy to understand and designed in clear and simple language
and that, if necessary, visualization is used.
The Social Affairs Committee has stated that they provided oral information to it
residents, the resident's trustees and relatives. Also staff and visitors
is said to have received information about the camera surveillance.
Regarding the information provided to the resident, the Social Affairs Committee has
stated that the resident has received information about the camera surveillance through
that he was there watching when the camera was installed, and that the boss
orally explained to the resident that the purpose of the camera is to the staff
should know that the resident is feeling well. It has not emerged that in addition
provided some other information about the camera surveillance to the resident.
The Data Inspectorate states that the information provided by the Social Affairs Committee
to the data subject (the resident) only includes information that
camera surveillance is in progress, and not all the information it provides
personal data controller is obliged to provide to the data subject at
collection of personal data in accordance with Article 13 of the Data Protection Regulation.
The Social Affairs Committee has also stated that information has been provided to it
trustee was registered. Chapter 11, Sections 4 and 7 of the Parental Code (1949: 381) state
that the court may appoint a trustee for a person who, due to illness,
mental disorder, impaired health or similar condition need
assistance in guarding their rights, managing their property or caring for their person,
and it is not enough that a good man be ordained or that the individual on
any other less intrusive way gets help. The management assignment must be adapted
to the needs of the individual in each particular case and may be limited to certain
property or concern.
The Data Inspectorate states that even when a trustee's assignment is designed
in such a way that it includes the task of caring for the individual
there are restrictions on what a trustee is allowed to do. Of the preparatory work for
the provisions on trusteeship are set out below.
In general, the principal should also be able to decide on matters himself
concerning his accommodation as well as the content of the care offered. One
trustees should therefore not normally represent the principal
Page 18
The Data Inspectorate
DI-2019-7782
1 8 (22)
when it comes to issues of consent to, for example, surgical procedures.
Of course, this does not prevent one from e.g.
the side of care institutions obtains the administrator's views (Bill.
1987/88: 124 p 172).
The Data Inspectorate has sent a request for supplementation on 15 June 2020
requested the Social Affairs Committee to provide documentation to the Data Inspectorate regarding
the scope of the trustee assignment and the information provided
the trustee. However, the Social Affairs Committee has not provided the information
regarding the scope of the nominee assignment and has also not reported on
what information has been provided to the trustee. The Social Affairs Committee has in addition
nor reported its assessment that the trustee can represent it
housing in respect of his right to information under Article 13 i
the Data Protection Regulation.
The Data Inspectorate's assessment
The Social Affairs Committee has not shown that there is an opportunity to provide information
the trustee, instead of the person registered in the case in question, or that it
information provided for in Article 13 of the Data Protection Regulation has been provided.
The Social Affairs Committee has thus not fulfilled its duty to provide information by
inform the trustee. Nor does the information that the Social Affairs Committee has
provided to the resident is sufficient for the duty to provide information to be
fulfilled, the Social Affairs Committee's processing of personal data has also taken place in violation
with Article 13 of the Data Protection Regulation.
Furthermore, it appears from section 15 of the Camera Surveillance Act (KBL) that information on
camera surveillance must be provided through clear signage or on something else
effective way. It also appears that provisions on the right to
information about the personal data processing such as camera surveillance
means are found in the Data Protection Ordinance and other regulations specified in section 6
KBL.
The Social Affairs Committee has not provided information that there is any sign that
informs that camera surveillance is being conducted. For the Social Affairs Committee to be considered
have lived up to the requirements regarding information in the Camera Surveillance Act must
thus, information about camera surveillance is considered to have been provided on something else
effective way.
Page 19
The Data Inspectorate
DI-2019-7782
1 9 (22)
As stated above, the information about the camera surveillance lives on
The Social Affairs Committee states that it has not complied with the requirements for information
according to the Data Protection Regulation. The Data Inspectorate further assesses that
nor did the Social Affairs Committee live up to the requirements to provide information on
camera surveillance in another effective way. This means that the treatment of
personal data also occurred in violation of the requirement for disclosure in § 15 KBL.
Because the resident has not received the prescribed information according to
the Data Protection Ordinance and also not according to the Camera Surveillance Act can
the Social Affairs Committee is not considered to have complied with the transparency requirements of Article 5 (1) (a)
the Data Protection Regulation.
Choice of intervention
Legal regulation
If there has been a violation of the Data Protection Regulation
The Data Inspectorate a number of corrective powers available under the article
58.2 a – ji of the Data Protection Regulation. The supervisory authority can, among other things
instruct the data controller to ensure that the processing takes place in
in accordance with the Regulation and if required in a specific way and within a
specific period.
It follows from Article 58 (2) of the Data Protection Ordinance that the Data Inspectorate in accordance with
with Article 83 shall impose penalty fees in addition to or in place of others
corrective measures referred to in Article 58 (2), as the case may be
in each individual case.
For the purposes of Article 83 (7) of the Data Protection Regulation, national authorities may:
rules state that administrative sanctions may be imposed on authorities.
According to ch. 6 Section 2 of the Data Protection Act allows for penalty fees to be decided
authorities, but to a maximum of SEK 5,000,000 or SEK 10,000,000
depending on whether the infringement concerns articles covered by Article 83 (4) or
83.5 of the Data Protection Regulation. Section 25 (4) KBL also states that
a penalty fee can be charged by the person who conducts camera surveillance and breaks
against the disclosure requirement in section 15.
Article 83 (2) sets out the factors to be taken into account in determining whether a
administrative penalty fee shall be imposed, but also what shall affect
the size of the penalty fee. Of central importance for the assessment of
Page 20
The Data Inspectorate
DI-2019-7782
2 0 (22)
the seriousness of the infringement is its nature, severity and duration. About it
in the case of a minor infringement, the supervisory authority may, in accordance with recital 148 i
the Data Protection Regulation, issue a reprimand instead of imposing one
penalty fee.
Penalty fee
The Data Inspectorate's inspection has shown that the Social Affairs Committee has considered
personal data in violation of Articles 5, 6.1, 9.2, 13, 35 and 36 of
the Data Protection Regulation. In addition, the Social Affairs Committee has violated section 15 KBL.
In assessing whether the violations are so serious that an administrative
sanction fee is to be imposed, the Data Inspectorate has taken into account that
the personal data processing intended for camera surveillance of a resident in a
very private sphere and in a position of dependence, where the treatment to some extent
included sensitive personal data. The treatment has been ongoing from March 2019-
April 2020, which is considered a relatively long time. Consideration has also been given to
that the Data Inspectorate has become aware of the processing through a tip from
a relative of the data subject. These circumstances are seen as aggravating.
According to the Swedish Data Inspectorate's assessment, the processing did not involve one
minor infringement without infringements that should lead to an administrative
penalty fee.
Then the articles in the Data Protection Ordinance that the Social Affairs Committee violated
covered by Article 83 (5) of the Data Protection Regulation and concerns an infringement
of the duty to provide information in section 15 KBL is the maximum amount for
the sanction fee in this case SEK 10 million, according to ch. Section 2, second paragraph
the law (2018: 218) with supplementary provisions to the EU
data protection regulation.
The administrative penalty fee shall be effective, proportionate and
deterrent. This means that the amount must be determined so that it
the administrative penalty fee leads to correction, that it provides a preventive
effect and that it is also proportional in relation to both current
violations as to the ability of the supervised entity to pay.
In determining an amount that is efficient, proportionate and
deterrent, the Data Inspectorate can state that the social committee has
processed sensitive personal data about a resident in a situation that is very
private and which means that housing is in a position of dependence
Page 21
The Data Inspectorate
DI-2019-7782
2 1 (22)
towards the municipality. The violation concerns the supervision of a person in his
bedroom, which is a very privacy-infringing treatment. In addition, have
the treatment lasted for a relatively long time, for more than a year. The Data Inspectorate
has taken into account that housing has a serious self-harming behavior,
sometimes with danger to life and health both for himself and the staff.
The Social Affairs Committee has taken the measure to resolve a complex situation there
personnel and housing have been at risk of injury. Although the situation
has been difficult to handle, the Social Affairs Committee has not tried alternatives, less
intervention measures to solve the problem of being able to have the resident
under supervision in a smooth manner before the camera surveillance began.
Given the seriousness of the infringements and that the administrative
the penalty fee shall be effective, proportionate and dissuasive
The Data Inspectorate that the administrative penalty fee for the Social Affairs Committee
shall be set at SEK 200,000.
This decision was made by Director General Lena Lindgren Schelin after
presentation by lawyer Jeanette Bladh Gustafson. At the final
The proceedings also have the General Counsel Hans-Olof Lindblom and
unit managers Malin Blixt and Charlotte Waller Dahlberg participated.
Lena Lindgren Schelin, 2020-11-24 (This is an electronic signature)
Appendix
How to pay penalty fee
Copy for knowledge of:
Data protection representative for Gnosjö municipality: dataskyddsombud@gislaved.se
How to appeal
If you want to appeal the decision, you must write to the Data Inspectorate. Enter i
the letter which decision you are appealing and the change you are requesting.
The appeal must have been received by the Data Inspectorate no later than three weeks from
on the day the decision was announced. If the appeal has been received in due time
Page 22
The Data Inspectorate
DI-2019-7782
2 2 (22)
the Data Inspectorate forwards it to the Administrative Court in Stockholm
examination.
You can e-mail the appeal to the Data Inspectorate if it does not contain
any privacy-sensitive personal data or data that may be covered by
secrecy. The authority's contact information can be found on the first page of the decision.