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.
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).
In Austria, too, it is therefore likely that storage for a maximum of a few minutes can be justified and only if the data is automatically overwritten. However, a sentry mode in vehicles that also records random events in the vicinity of the vehicle without cause is problematic under data protection law. Drivers should not activate this by default when the car is parked in a public space. Activation by the user on a case-by-case basis (e.g. when the app registers contact with the vehicle) can of course be justified in individual cases.
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- The State Commissioner for Data Protection and Freedom of Information Mecklenburg-Vorpommern: Publication on dash cams, especially at Tesla (German)
- Decision of the VwGH on dash cams (German)
- Decision of the BVwG on § 12 DSG among others (German)
- Press release of the Dutch Data Protection Authority