For a number of years now, public life has seen an exponential increase of the use of video recording equipment. The question remains under which conditions video equipment can be installed and to which extent video recordings can be allowed as evidence within the European Union (EU) legal system.
Not only in the public space, but also on the work floor are cameras deployed regularly. In addition, it is almost a certainty that most events are recorded by dashcams, drones, or smartphones.
The opinions diverge on whether or not this is a positive evolution.
What has become clear is that video recordings can be used as evidence in legal procedures.
When the video recordings are gathered lawfully and in accordance with the legal provisions, there are no issues. However, when video recordings are gathered unlawfully, the question can be asked to which extent the recordings can be allowed as evidence.
The answer to this question is not unambiguous.
1. Legal framework
The recording of individuals is considered as an act of processing of personal data.
This implies that the user of the video needs to take the provisions of the law of 8 December 1992 on the protection of individuals with regard to the processing of personal data (hereinafter the “law on privacy”) and as from 25 May 2018 the GDPR. Additionally, particular regulations exist concerning the use of video surveillance on the work place or the use of video surveillance in general.
Given that the law on privacy was not aimed at the specific problem of video use, other regulations have come to light to govern the use of video surveillance.
The two best-known regulations are the CLA n° 68 of 16 June 1998 concerning the protection of the privacy of employees with regard to video surveillance on the work floor (hereinafter CLA n° 68) and the law of 21 March 2007 on the deployment and use of surveillance videos (hereinafter the “surveillance video law”).
1.1. CLA n° 68
If an employer wishes to install surveillance videos on the work floor, he needs to comply with a specific procedure. The use of video surveillance must be notified to the privacy commission. The employer has an information obligation, which requires that he informs the employees of the purpose of the surveillance, as well as whether or not the images are stored, the number of surveillance videos and the period during which they are operational.
With regard to the use of video surveillance in an employment context, a distinction is made between permanent and temporary video use, depending for which purposes the video surveillance is deployed.
Video surveillance can be temporary and permanent when it is aimed to guarantee the safety and health, or when it is intended to protect the goods of the company or the monitoring of the production process, only in regard to the machines.
On the other hand, if the purpose of the surveillance is to monitor the production process in regard to the employees, or to monitor the labour of the employees, the video surveillance can only be temporary.
The CLA n° 68 determines also that the use of the surveillance has to be proportionate to the purpose for which it is deployed. Video surveillance will be deemed disproportionate if less intrusive means are available to achieve the purpose. Furthermore, in principle, no interference in the personal life of the employee is allowed. If there would be interference, this has to limited to an absolute minimum.
1.2. The video surveillance law The video surveillance law of 2007 applies to surveillance videos, which are intended to prevent or trace crimes or nuisances or to maintain public order. The law makes a distinction between (i) public places, such as the public road, markets, parks, (ii) places accessible for the public, such as museums, shops and (iii) not for the public accessible places.
The video surveillance law prohibits any secret use of surveillance videos. In case a surveillance video is installed, the associated pictogram needs to be visible which makes people aware of the use of a surveillance video. The video surveillance law also provides that the only the controller can have access to the recordings, and that all persons recorded have a right to access the images.
The proportionality principle is again an important criterion. It requires that the use of the video surveillance is necessary and appropriate for the intended purpose. This also applies to the way the video surveillance is used. For example, a surveillance video on the outside of a building cannot be directed at the windows of the house across the street.
The use of surveillance videos under the video surveillance law must be notified to the privacy commission and to the police chief of the police zone in which the surveillance videos are installed.
1.3 The use of Dashcams
The use of dashcams, drones or other mobile video equipment that fall outside of the scope of the CLA n° 68 or the video surveillance law, is for the time being not subjected to a particular regulation.
The general law on privacy is applicable to this kind of video recordings.
Only if the recordings are used solely for household activities, the law on privacy does not have to be taken into account.
In all other cases, the provisions of the law on privacy need to be respected. In this regard, it should be noted that once the recordings are shared, for instance in an online environment, the personality rights of the persons in the video can come into play. More information on the personality and image rights of persons can be consulted by clicking here.
The police court of Brussels has made a judgment this year on the evidence value of dashcam recordings. The police court holds that the use of a dashcam in a vehicle is allowed. In case the dashcam is used to collect evidence in the context of a collision, no ordinary personal data is being collected, but judicial personal data. The law on privacy contains in this regard a principle prohibition on the collection of judicial personal data. However, the law on privacy also provides an exception to this principle, in case the collection is necessary for the administration of personal disputes.
The police court confirms that when this exception is applied, the other provisions of the law on privacy need to be complied with as well. This implies that the proportionality criterion and the information obligation need to be respected. The user of the dashcam, who is considered as a controller, has to inform the other party of the existence of the recordings, and has to communicate the recordings to the other party as soon as possible.
If the recordings would not be communicated without undue delay, the presumption could rise that the recordings have been manipulated and that they are not longer truthful.
2. Unjustified processing of video recordings
It happens of course that the legal provisions on the use of video surveillance are not respected, and the recordings are collected illegally. What are the consequences in this regard? The question is raised quite often whether or not the video recordings can be used as evidence in proceedings. The controller could in some cases face administrative or criminal sanctions, but this has nothing to do with the potential evidence value of the video recordings unlawfully obtained.
In 2003, the High Court has introduced the Antigoon principles in criminal cases. Based on the Antigoon jurisprudence, evidence obtained unlawfully cannot be taken into consideration when (i) the compliance with certain formal requirements are sanctioned with nullity, (ii) the unlawfulness affects the reliability of the evidence or (iii) the unlawful evidence results in a violation of the rights of defence.
At first, it was generally assumed that the Antigoon principles could only be applied in criminal cases and that is was not possible to simply transfer these principles to civil proceedings.
In 2008, the High court has ended this discussion in the context of the labour case. The court stated that unless the law provides otherwise, it is up to the judge to determine whether the unlawful evidence can be allowed or not. The judge needs to take all elements of the case into consideration, such as how the evidence has been obtained and the circumstances in which the unlawful act occurred. The Antigoon principles in civil cases are a fact.
When the Antigoon principles are examined in the light of the use of video recordings, it can be observed that the law on privacy, the CLA n°68, nor the video surveillance law provides a nullity sanction if the recordings are collected in violation with the law. Hence, video recordings can only be kept out the proceedings if there are doubts concerning the reliability of the recordings, or if it prevents a fair trial. Video recordings can reflect a certain moment, without painting the entire picture.
As a result, the admissibility of unlawful obtained video recordings will be decided on a case-by-case basis. There is a difference between recordings obtained through a video, which has not been registered with the privacy commission or recordings of a secret video. Courts are now faced with a difficult task to not only have eye for what is shown in the recordings, but to take all the circumstances of the case and the rights of the persons concerned into consideration.