VG Ber­lin: Unre­a­sonable infor­ma­ti­on about video recor­dings; per­so­nal refe­rence of the recor­dings (left open)

The Ber­lin Admi­ni­stra­ti­ve Court (VG Ber­lin) has ruled that Judgment of Octo­ber 12, 2023 (1 K 562/21) the refu­sal to pro­vi­de infor­ma­ti­on in accordance with Art. 15 GDPR. A pas­sen­ger of the Ber­lin S‑Bahn had, in accordance with Art. 15 GDPR Infor­ma­ti­on about video recor­dings from him. The S‑Bahn had refu­sed to pro­vi­de the infor­ma­ti­on becau­se, among other things, the per­sons recor­ded were not iden­ti­fi­ed and it was not pos­si­ble to iden­ti­fy the pas­sen­ger with the descrip­ti­on he had provided.

The Pan­kow Local Court as the lower court had refu­sed to pro­vi­de the infor­ma­ti­on or denied a vio­la­ti­on of the right to infor­ma­ti­on and rejec­ted a cor­re­spon­ding cla­im for damages:

Art. 12 et seq. GDPR does not Excep­ti­on due to unre­a­son­ab­leness but the legal con­cept of Sec­tion 275 (2) BGB applies in gene­ral. (“The debtor may refu­se per­for­mance if this requi­res an effort that is gross­ly dis­pro­por­tio­na­te to the creditor’s inte­rest in per­for­mance, taking into account the con­tent of the obli­ga­ti­on and the requi­re­ments of good faith. […]”), and it is also con­tai­ned in reci­tal 62 (“Howe­ver, the obli­ga­ti­on to pro­vi­de infor­ma­ti­on does not app­ly if […] informing the data sub­ject pro­ves impos­si­ble or invol­ves a dis­pro­por­tio­na­te effort […]”).

Also from the Prin­ci­ple of good faith – which is gene­ral­ly appli­ca­ble on the basis of the Char­ter and Art. 5 para. 1 GDPR – a right of refu­sal ari­ses if a ser­vice is gross­ly dis­pro­por­tio­na­te to the creditor’s inte­rest. In the pre­sent case, the fact that the pas­sen­ger had not sta­ted the pur­po­se of the request for infor­ma­ti­on play­ed a role; this argued for a Litt­le inte­rest in infor­ma­ti­on.

The VG Ber­lin also doubts that the recor­dings were made at all. per­so­nal data but left the que­sti­on open. In prin­ci­ple, they do appear to be personal:

It is true that the recor­dings of per­sons by video sur­veil­lan­ce came­ras are likely to con­sti­tu­te per­so­nal data within the mea­ning of Art. 4 No. 1 GDPR, at least from an abstract point of view. This is sup­port­ed by the fact that the data is recor­ded and stored pre­cis­e­ly in order to be able to iden­ti­fy per­sons if neces­sa­ry. The legis­la­tor also assu­mes in Sec­tion 20 (1) BlnDSG that per­so­nal data is coll­ec­ted and pro­ce­s­sed in the con­text of video sur­veil­lan­ce of publicly acce­s­si­ble areas.

Howe­ver, such an approach is pro­ba­b­ly too abstract:

Howe­ver, the fact that, accor­ding to the legal defi­ni­ti­on in Art. 4 No. 1 GDPR, “a per­son” who “can be iden­ti­fi­ed” is con­side­red iden­ti­fia­ble speaks against a purely abstract approach. The clas­si­fi­ca­ti­on of data as per­so­nal is the­r­e­fo­re also requi­res a con­cre­te-sub­jec­ti­ve moment, i.e. whe­ther the per­son to whom the data rela­tes can actual­ly be iden­ti­fi­ed by the con­trol­ler, taking into account all means that the con­trol­ler can rea­son­ab­ly be expec­ted to use for this pur­po­se. If it is not pos­si­ble for the con­trol­ler to iden­ti­fy the data, the data should not be per­so­nal data, but should be anony­mous (for the con­trol­ler), even if a third par­ty, who­se access to the data is unli­kely, would be able to iden­ti­fy the data […]. Based on this, the­re is again some evi­dence that the recor­ding of the per­sons cap­tu­red in the con­text of video sur­veil­lan­ce in the sub­ur­ban trains do not con­sti­tu­te per­so­nal data for the plain­ti­ffbecau­se it should not be pos­si­ble to iden­ti­fy the per­sons with the means available to it from a rea­li­stic point of view.

In the PinG 1/2024 Mül­ler-Pelt­zer, Selz and Sur­ja­di cri­ti­ci­ze this appli­ca­ti­on of the pro­hi­bi­ti­on of abu­se of rights. Accor­ding to them, the refu­sal should rather have been justi­fi­ed by the fact that the video recor­dings must be dele­ted after 48 hours under the appli­ca­ble law. The lon­ger sto­rage – deman­ded by the plain­ti­ff – for the pur­po­se of obtai­ning infor­ma­ti­on would have impai­red the rights of the other pas­sen­gers, which is con­tra­ry to Art. 15 para. 4 GDPR.




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