Court case 842/16.5T8ALQ.L1-3 – Court Ruling (Portugal, 2017)

In the case of a public interest (road safety), it is appropriate and proportionate to monitor the speed at which cars travel, through a registration of the speed with a radar, including a photograph of the vehicle license plate, which will only be used if necessary for the purposes of criminal or administrative fining proceedings. There is no interference on the constitutionally protected right to privacy or intimacy, inasmuch as the image collected by a radar is directed at the vehicle, and, more specifically, at its license plate, while the driver is not visible nor identifiable. A driver was caught speeding and was issued an administrative fine of inhibition of driving for a period of 90 days. The driver appealed the decision to the Court of First Instance, considering her/his right to privacy was violated by being photographed by a speeding radar. That meant that having her/his photograph taken and used as proof in the proceedings should be considered illegally obtained evidence. Also, the driver considered that there was no evidence that the radar had been registered and approved by the data protection authority (CNPD), as is legally required, and so, the radar infringed the national data protection law. The Court of First Instance upheld the administrative decision. The driver, then, appealed to the Appeal Court. The data protection authority, CNPD, is responsible for giving opinions, controlling and inspecting compliance with legal and regulatory provisions regarding the treatment and protection of personal data, as per article 23 of Act 67/98, of 26 October. In accordance with the provisions of article 3, a) of this Act, personal data is “any information, of any nature and regardless of the respective support, including sound and image, relating to the identified or identifiable natural person who may have data be identified, directly or indirectly, namely by reference to an identification number or to one or more specific elements of their physical, physiological, psychological, economic, cultural or social identity ”. The radar used only registered the speed of the car, which is data that is outside the sphere of private life, insofar as it was verified in a public place. With public interest (road safety) at stake, it is considered appropriate and proportionate, under the terms of article 18 of the Portuguese Constitution, to monitor and register the speed at which vehicles travel through radar monitoring and registration of the offense through a photograph of the vehicle and license plate, which will only be used if necessary for the purpose of criminal or administrative offense proceedings. The Appeal Court considered, then, that, there is no interference on the constitutionally protected right to privacy or intimacy, inasmuch as the image collected by a radar is directed at the vehicle, and, more specifically, at its license plate, while the driver is not visible nor identifiable.