In its ruling of April 6, 2017, the OVG Berlin-Brandenburg (case reference: OVG 12 B 7.16) partially confirmed the first-instance data protection ruling of the VG Potsdam from 2015 (case reference: VG 9 K 725/13).
For example, the entrance area and waiting room of a dental practice may not be monitored with a video camera while the practice is open.
The dentist’s action against the data protection supervisory authority’s requirements was therefore unsuccessful.
However, the monitoring of treatment rooms that are not accessible to the public – provided patients have given their prior consent – is permissible.
Dentist monitors treatment room, entrance area and waiting room
A dentist in Potsdam decided to comprehensively equip her practice with a video monitoring system.
To do this, she installed three video cameras in her practice.
One of them was located directly in the entrance area and filmed this as well as the waiting room.
The other two cameras were installed in the treatment rooms of the practice.
The recordings from the cameras were not saved, but merely transmitted to a monitor system in the entrance area and in the treatment rooms.
Data protection authority prohibits video surveillance
Following an anonymous complaint, the dentist was visited by the responsible data protection authority, which immediately prohibited her from using the cameras in the entrance area.
She was also ordered to cover the signs indicating video surveillance during the practice’s opening hours.
The dentist filed a complaint against the data protection authority’s decision.
In her opinion, video surveillance was perfectly permissible.
After all, she does not store the video footage.
In addition, the video surveillance was necessary for her.
This is because the staff structure does not allow for permanent monitoring of the entrance area and waiting rooms by one employee.
Video surveillance for prevention and patient protection
The purpose of video surveillance is prevention, the protection of patients and the protection of employees and visitors from criminal acts in the practice (in particular property crimes and physical assaults).
In addition, the monitoring of “injected” patients who are seated in the waiting room until the anaesthetic takes full effect is not possible in any other way.
Visitors who do not wish to be filmed in the waiting room could stay in three seats that are not visible to the video camera.
However, the OVG also prohibited the dentist from monitoring the entrance area and the waiting room.
Video surveillance of the treatment rooms, on the other hand, was permissible with the patient’s consent.
Treatment rooms can be video-monitored with consent
The video recordings in the treatment rooms do not violate the provisions of the Federal Data Protection Act (BDSG).
It is a place that is not accessible to the public.
Due to the special types of personal data within the meaning of Section 3 para.
9 BDSG (health), the prohibition is to be measured against § 28 para.
6-8 BDSG.
According to this, the collection of such personal data is possible with consent.
Such consent can be assumed in the case of the dentist, which is why the video surveillance in these rooms is also permissible in the opinion of the OVG Berlin-Brandenburg.
OVG: Private video surveillance in waiting rooms inadmissible
The situation is different when monitoring the entrance area and the waiting room.
These are rooms that are accessible to the public (the practice is not locked) and the collection of personal data within the meaning of Section 3 para.
3 BDSG for the purpose of use.
According to Section 6b para.
1 BDSG, however, such video surveillance is only permitted to exercise domiciliary rights or to safeguard legitimate interests for specifically defined purposes.
Or if the consent of the data subject has been obtained.
“Video surveillance” pictogram does not lead to consent
In the opinion of the OVG, the display of the signs did not lead to the effective consent of visitors to the practice.
This is because consent is only effective if it is based on the free decision of the person concerned.
In addition, consent must be given in writing, unless special circumstances indicate otherwise.
No exercise of domiciliary rights or legitimate interests
The surveillance of the entrance area and the waiting room was also not necessary for the exercise of domiciliary rights or the protection of legitimate interests.
A consideration by the OVG led to the conclusion that the right to privacy was too severely impaired by the video surveillance.
There is no evidence to support the dentist’s argument that video surveillance is necessary to prevent criminal acts.
Furthermore, surveillance by an employee in the reception area would be far more effective and less intrusive on the personal rights of visitors to the practice.
To be observed at all times: The principle of data minimization
At this point, the OVG also reiterated the principle of data minimization.
Wherever personal data is collected and stored, care must be taken to ensure that only as much data is collected as is absolutely necessary for the respective purpose.
For example, the dentist was permitted to set up the camera so that it only recorded the staff area behind the reception desk.
Pictograms do not have to be covered
Contrary to the opinion of the VG, however, the dentist does not have to cover the pictograms in her practice during opening hours.
This is because the meaning and purpose of the BDSG does not require her to make it clear or expressly point out that video surveillance does not take place during opening hours.
The decision shows once again that data protection also plays a major role in the private sector.
Unlawful measures can quickly lead to high fines or warnings.
It is therefore advisable to legally check the permissibility of collecting personal data in advance – especially in the case of video surveillance.