The judgment AARP/432/2024 of the Geneva Cour de Justice (CJ) of November 27, 2024 concerns an alleged theft on the premises of a cooperative. In the course of the proceedings, one of the defendants had Video recordings from a surveillance camera of the cooperative submitted. Among other things, the usability of these recordings was disputed.
The recordings did not violate Art. 179quater StGBbecause the surveillance camera recorded the entrance hall and the outside area of the cooperative building, places that are largely frequented by everyone. It was therefore not a matter of private or secret processes (although the BGer may also count immediate outdoor areas as private areas, BGE 118 IV 41). In addition, the people being filmed knew that they were being filmed because of the numerous camera signs.
However, during the examination under the DPA, the court found a Misappropriation because in this case the recordings were no longer used for security purposes, but to prove that two people were on good terms:
Indeed, if intimate B affirmed, de manière convaincante, that the cameras had been installed in the un but sécuritaire, force is to note that their use has been well and truly détourné in the case in point, since the extraction of the images has served a different purpose than the one initially envisaged, namely that of démontrer une apparente amitiéor, at the very least, a good relationship between the two other parties to the proceedings.
There was therefore a Violation of personality before. However, the court does not ask whether such use was not to be expected – in this case, the duty to provide information could have been violated, but not the principle of transparency and therefore not the principle of purpose limitation. However, the text on the camera signs would certainly have played a role here (which is why the wording here or in a referenced privacy policy could be of significance).
A Justification was not seen by the CJ. Implied consent – which the CJ assumed – related only to the security purpose:
L’intimé ne peut se prévaloir d’un motif justificatif tel que prévu par l’art. 31 al. 1 LPD, dès lors qu’on doit admettre que le consentement – tacite – de l’appelant ne portait que sur l’exploitation des images conformément à leur finalité initiale and that par ailleurs, vu le faible intérêt des images, aucun intérêt prépondérant ne justifiait une telle atteinte.
As a result, the recordings could not be used because they did not involve a serious criminal offense:
Considérant enfin qu’une pesée des intérêts ne saur plaider en faveur de leur utilisation dans la présente procédure, dès lors que the images do not allow the identification of a serious offense, la Cour retient que les enregistrements produits devraient être déclarés inexploitables.
Ultimately, however, the question of usability remained open because the relationship between the two persons, which should have been proven by the recordings, was not relevant to the decision.