Bayerisches Landesamt für Datenschutzaufsicht – Court Ruling (Germany, 2022)

The controller runs a gym. The defendant is the Bavarian DPA (BayLDA). The controller and the BayLDA were in dispute about the lawfulness of a video surveillance with six video cameras in the training rooms and the counter of the gym. The controller argued that the video surveillance served to prevent and solve thefts and damage to property, which had occurred several times in the past. In addition, the video surveillance served to prevent sexual harassment, as a continuous presence of the staff in all rooms could not be guaranteed. After a client of the controller requested the BayLDA to stop the video surveillance, the BayLDA issued a notice. It required the controller to refrain from observing the training areas with video cameras pursuant to Article 58(2)(f) GDPR. After that, the controller replaced the the video cameras with dummy cameras. The BayLDA argued that, while the legal basis for the video surveillance can generally be Article 6(1)(f) GDPR, the conditions were not met in the present case. In particular, the video surveillance was not not necessary as the controller could have considered less restrictive means such as increased staff and anti-theft devices. The controller argued that, due to the contractual relationship with the clients, it also had a secondary obligation to ensure their safety, in particular by preventing or solving thefts and assaults through video surveillance. In addition, the data subjects would be informed about the monitoring via signs and the general terms and conditions, thereby also consenting to the video recordings. The controller claimed that, after replacing the video cameras with dummy cameras, it could expect yearly damages in the amount of €10,000 to €15,000 since the clearance rate without the video camera was almost zero. The court held that the video surveillance was not lawful and that the BayLDA was entitled to require the controller to refrain from using video cameras in training areas pursuant to Article 58(2