Sentry mode and dash cam in Austria
Sentry mode and dash cam in Austria

When is video surveillance in the car permitted?

Many drivers now rely on dash cams to record potential accidents while driving. Nowadays, it is often not necessary to install additional dash cams because modern vehicles are already equipped with cameras ofering a sentry mode. However, this also raises data protection issues, as the driver himself may also be a data controller within the meaning of the GDPR.

Statement from Germany on dash cam and sentry Mode

The State Data Protection Commissioner for Data Protection and Freedom of Information of Mecklenburg-Western Pomerania points out in a recent communication that the use of dash cams or the so-called Sentry Mode is to be viewed critically, especially in Tesla vehicles. This would often violate the GDPR.

The authority does not take a blanket position against dash cams, but states the following as part of the balancing of interests in accordance with Art. 6 para. 1 lit. f GDPR:

"Data protection-compliant use of dashcams is therefore only possible if a technical ring storage system immediately overwrites the existing data and thus deletes it if there is no reason for permanent storage. We consider a storage cycle of approx. one to two minutes to be permissible, as it is sufficient to store a period of approx. 30 seconds to one minute before and approx. 30 seconds to one minute after the accident to document the course of an accident."

The additional sentry mode activated when a USB stick is inserted, in which all possible events around the vehicle are recorded, including, for example, when a passer-by approaches the vehicle, is inadmissible in public spaces.

The fact that civil courts in Germany regularly admit dash cam recordings as evidence, even if they were made contrary to GDPR regulations, does not change this.

Sentry Mode was originally activated by default in Tesla vehicles. Drivers therefore had to actively prevent the data from being recorded. After the data protection authority in the Netherlands initiated proceedings against Tesla, Sentry Mode was deactivated by default. This means that the responsibility lies directly with the user. Tesla was thus able to avoid a fine in the Netherlands.

Court Perspective on Dash-Cam Data Storage

In Austria, the Supreme Administrative Court (VwGH) ruled in 2016 that dash cams with (even short) storage options violate the Data Protection Act 2000 (VwGH Ro 2015/04/0011). In the most recent decision on the subject, the data protection authority considers event-related storage for up to 5 minutes to be permissible (decision of November 10, 2022, GZ 2022-0.609.733). The legal situation has since changed insofar as the permissibility is to be measured solely against the GDPR. The BVwG considers Sections 12 and 13 DSG to be inapplicable in any case, as there is no opening clause here (BVwG W245 2263873-1).

Update: Decision of the Federal Administrative Court on the "Sentry Mode"

In a recent judgment by the Federal Administrative Court (BVwG W214 2259197-1), it was clarified that the use of "Sentry Mode" in a Tesla vehicle is subject to strict data protection regulations. The case addressed the complaint of a pedestrian who noticed that he was being recorded by cameras of a Tesla parked in "Sentry Mode." This occurred, however, without a USB stick plugged into the vehicle, which is necessary for storing the recordings. The court found that mere data capture by the cameras, even without actual storage on a physical medium, constitutes data processing that must comply with the requirements of the General Data Protection Regulation (GDPR). It was specifically ruled that this surveillance practice violates the informational obligation under Article 13 GDPR, as affected persons must be informed that they could be recorded and who is responsible for the data processing. The Data Protection Authority had previously seen no breach of data protection due to the lack of recording. No penalty was imposed on the owner of the Tesla.

This likely means that activating Sentry Mode in public spaces is always legally problematic due to the lack of compliance with the information obligation under Article 13 GDPR.

Do you have questions on this topic?

If you have further questions on this topic or on other data protection issues and would like advice from a lawyer, please do not hesitate to contact us. As lawyers, we specialize in this and other areas of law. Please contact our law firm at office@geuer.at or give us a call under +43-1-4380072. We look forward to hearing from you.


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