The AP – Court Ruling (Netherlands, 2020)

The Data protection authority (AP) dismissed the complainant’s request to issue a sanction against a business for the alleged unlawful recording of personal data with surveillance camera. Indeed, after having carried out on-site investigations, the surveillance camera position has been adjusted to be less visible for the public road. Thereafter, the area monitored corresponded to the plot boundary with the entrance gate and a section of the public road. In this regard, the AP found that the surveillance camera’s owners had legitimate interests in installing the camera, as it was used for security purposes and that one incident already took place. For that purpose, the AP found that a limited part of the public road must be filmed and that it cannot be achieved by another less restrictive mean. In addition, the AP pointed out that the data controllers had implemented sufficient safeguards to inform the passers-by about the installation of the aforementioned camera. The AP concluded that the complainant’s privacy interests did not outweigh those of the data controller. The complainant challenged the AP’s decision before the District Court, which dismissed the appellant’s claims as well. As a consequence, the appellant lodged an appeal against the District Court's decision before the Council of State. The appellant argued that the District Court disregarded that a large part of the public road was monitored by the camera and that the incident which took place did not justify surveillance camera as it only happened once and was not directed against the data controller. In addition, it argued that the AP infriged Dutch administrative law as the authority did not send its report on its on-site investigations. Therefore, the Council of State had to judge whether the District Court properly balanced the appellant's and the data controller's interests, and thus if the personal data were lawfully recorded by the camera. In addition, the Council of State had to rule on the violation of Dutch administrative law. The Council of State ruled that the surveillance camera is filming the company’s entrance gate and a section of the public road. However, only the people who are close to the plot boundary are fully captured. In addition, the Court confirmed that the data controllers implemented sufficient safeguards, such as the deletion of the images after two weeks. Finally, the Council of State confirmed that the passers-by were properly informed of the use of the surveillance camera. However, as the AP failed to send the appellant its report on its on-site investigations, the District court should have issued its decision with an order to pay the costs of the proceedings and a order compensation from the court registry. Thus, the district Court issued its judgement contrary to Section 6:22 of the General Administrative Law Act. As a conclusion, the Council of State ruled that the appeal was well-founded and annulled the District Court judgement insofar there is no order for costs.