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Article IT and Data Protection Competition, Retail and Consumer Law Commercial and International Contracts | 05/02/13 | 5 min. | Florence Chafiol
Video surveillance and privacy at work. The CNIL remains vigilant.
In a decision 2012-475, handed down on January 3, 2013, the CNIL (French Data Protection Agency) pronounced sanctions against a co-owners’ association for having placed under permanent video surveillance the security agents working in a building of which the co-owners’ association is the managing agent. Indeed, the CNIL deemed that such practice was disproportionate in relation to the purpose of ensuring the safety of persons and property sought by the data controller as part of the implementation of video surveillance measures.
Therefore, although these types of surveillance measures, implemented for security purposes, are not criticized as such by the CNIL, the latter deems that they cannot justify employees being placed under constant surveillance even if such employees are assigned to security surveillance.
In this respect, the CNIL specifies that it does not matter whether the security agents had been informed about the measures or had agreed to them as long as the “continuous aspect of the surveillance is not justified by a requirement to ensure the safety of persons and property but results from the decision to monitor the employees’ activity”.
Beyond the purely symbolical aspect of the financial penalty inflicted in this case (1 euro), the CNIL confirms, by a sentence that it nevertheless decided to make public, its extreme caution regarding video surveillance and its attachment to employees’ privacy at work.
In the matter at hand, security agents working in a building on the Champs-Elysées had reported to the CNIL in February 2012 the presence of a camera continuously filming them within the control room.
Such agents were employed by a private security agency, acting within the framework of a services agreement entered into with the co-owners’ association.
The co-owners’ association, managing agent of the building, had informed the security agents of and declared to the CNIL the existence of such surveillance measures, by specifying that the purpose thereof was to ensure the safety of the persons and property inside the building.
In practice, in addition to the 57 cameras located in the building, a 58th camera had been placed in the control room, thus allowing the agents’ workstation to be viewed.
In July 2012, the CNIL issued a formal notice to the co-owners’ association requesting that they remove the 58th camera and conducted an on-site inspection in September.
As the CNIL noted that its formal notice went unheeded, it finally decided to pronounce sanctions against the co-owners’ association on the grounds of Article 6 of amended Data Protection Act No. 78-17 dated January 6, 1978, for failure to comply with the “proportionality requirement” of the video surveillance measures. The CNIL deemed that such monitoring of the security agents was disproportionate in relation to the purpose of ensuring the safety of persons and property.
In this matter, several points should be noted:
- First, it should be reminded that in this case, the surveillance measures had been declared to the CNIL. Thus, as a reminder, the fact that a data processing is declared to the CNIL does not, as such, prevent the latter from pronouncing a sanction at a later stage in the event of an inspection. Therefore, the acknowledgement of receipt sent by the CNIL for each declaration does not mean that the latter is giving a “free hand” regarding the validity of the implemented processing.
- In this case, it is precisely in relation to the purposes indicated in the associations’ declaration form that the CNIL deems that the surveillance measures were disproportionate. It is therefore important to define, with precision and pragmatism, the purpose of the processing in the declarations made to the CNIL. Does this mean that the CNIL’s decision would have been different if the co-owners’ association had indicated in its declaration that the surveillance measures also aimed at monitoring the security agents’ activity? We do not believe so as, in any case, the surveillance cameras can only be installed in the work place for persons and property safety purposes. The CNIL deems that the cameras can only be turned towards the entrances and exits of the building, fire escapes and roads. They must not film employees at their workstation (except in special cases, such as, for example, when an employee is exposed to a grave risk). In this respect, in the case at hand, it is not the fact that the surveillance of the control room is continuous that was sanctioned, but the fact that such video surveillance allows the employees’ activity to be monitored.
-Finally, it emerges from this matter that the respect of privacy does not only lie with employers but also with their contractors.
A decision that sets an example
In the case at hand, the CNIL decided to only inflict a 1-euro financial penalty on the co-owners’ association. It justifies its position by the fact that the processing purpose was to ensure a better protection of persons and property.
Indeed, in order to try to justify the surveillance of the control room, the co-owner’s association had put forward the fact that in order to guarantee the safety of the building, given in particular the agents’ recurrent absenteeism, ensuring that the agents were well and truly performing their functions and monitoring the images reproduced by the surveillance cameras was the appropriate thing to do, without which the video surveillance would have lost all significance. The argument put forward was in fact a judicious one.
The CNIL however did not follow this line of argument and underlines, by this symbolical but public decision, its desire not to allow any derogation from the principle of respect for the privacy of employees in their workplace. As such, this decision could very well be considered as a decision that “sets an example”, thus foreseeing sanctions that may be greater for future offenders.
Florence Chafiol-Chaumont - Partner
Chloé Minet - Counsel