Christmas is just around the corner and the first Christmas markets have already opened their doors. Operators and showmen are calling for special safety measures this year, including a time-limited Video surveillance their markets. A nationwide Video surveillance at Christmas markets without cause, however, is not permitted - as the Data Protection Commissioner of the State of North Rhine-Westphalia points out.
"Pure speculation is not sufficient grounds for surveillance."
"Many people's need for security is understandable. However, many visitors also want to stroll around the markets freely and unobserved. One Video surveillance must therefore be weighed up carefully. Whether it is permitted depends heavily on whether there are indications of a risk situation," explains Bettina Gayk, State Commissioner for Data protection in NRW
According to Gayk, the police or regulatory authorities are authorized to monitor Christmas markets by video. However, facts must justify the assumption that the markets Criminal offenses or administrative offenses are committed.
It is true that such gatherings of people always offer opportunities for pickpocketing or even life-threatening terrorist attacks. "However, mere suspicions that something like this could happen are not enough to justify a considerable restriction of fundamental rights for a large number of people through large-scale surveillance," emphasizes the data protection officer.
Risk situation decisive for video surveillance
Therefore, the assessment of whether there is a sufficient risk situation is of particular importance. "What is required are either findings from previous events that indicate an increased likelihood that the current event will also lead to a risk. Criminal offenses comes," explains Gayk. "Or there is a specific threat situation, for example because an attack has already been announced."
With her comments, the Commissioner is also reacting to the President of the Showmen's Association, Albert Ritter, who recently issued a Video surveillance and admission controls at the Christmas markets. Data protection should not be a protective shield for perpetrators, said Ritter.
Despite all the justified concerns about the security of citizens, Gayk warns that such statements conceal a false view of data protection. "Rather, data protection should ensure that civil liberties are carefully weighed up against security concerns. The risk situation at some attractive Christmas markets in large cities is often very different to that of tranquil daytime events in the countryside. Not everywhere do visitors have to accept being watched while drinking mulled wine or chatting with friends."
Reading tip: EDPB publishes guidelines on legitimate interest
Legal basis for video surveillance at Christmas markets
The Processing of personal data (such as video recordings of persons) is only permitted if a legal basis exists. In the case of Video surveillance is often Art. 6 para. 1 lit. f GDPR which requires a "legitimate interest".
In Germany, § 4 BDSG supplements the requirements of the GDPR and specifically regulates the Video surveillance publicly accessible areas. Surveillance is permitted if it is necessary in order to
- enforce the house rules,
- legitimate interests such as hazard prevention or the prevention of Criminal offenses to preserve,
- or other weighty reasons exist that do not outweigh the rights of the persons being monitored.
The Video surveillance must therefore be justified by a specific risk situation or security-related reasons (e.g. terror warnings, previous incidents of theft or violence).
It must also be checked whether the surveillance is appropriate and whether milder means, such as more security forces on site, would be sufficient. Surveillance must also be clearly and visibly indicated by signs (Art. 13 GDPR).
The recordings may also only be used for the purposes for which they were collected (e.g. to avert danger) and not for any other purpose.
Conclusion: The Video surveillance of Christmas markets is permitted if it is justified by a legitimate interest, such as the safety of visitors, and the legal requirements are complied with. Operators and authorities must carefully check whether surveillance is necessary and proportionate.
Source: Communication from the State Commissioner for Data Protection in North Rhine-Westphalia
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