[RedirectPrompt_en-US]
At present it seems nothing about the GDPR is fixed or settled. This was recently illustrated by an update to the Austrian Data Protection Authority's (DPA) online information on dashcams. While dashcams are rumoured to be inadmissible in Austria, the DPA's update may revive this discussion.
Austrian case law:
Prior to the GDPR, the Austrian Administrative Supreme Court (Verwaltungsgerichtshof) issued a prominent decision (VwGH, 12 September 2016, Ro 2015/04/0011) on the admissibility of dashcams under Austrian data protection law. The court found that the particular dashcam in question was inadmissible, because it stored the recordings permanently whenever the device's "emergency button" was pressed. Since a person could permanently hit the button, the court reasoned that any length could be recorded, which was seen as disproportionate interference with the privacy of other road users.
Since the GDPR became applicable, the DPA has issued two decisions on the legality of dashcams in Austria. With recourse to the ruling of the Austrian Administrative Supreme Court, the DPA found in both cases that the dashcams were inadmissible:
Contrary to rumour, neither the Austrian Administrative Supreme Court nor the DPA ruled that the use of a dashcam is generally inadmissible but assessed the technical specifications of each device separately. This is now clarified by the DPA's new guidelines.
The guidelines:
Most recently, the DPA published a list of criteria on its website according to which the application of a dashcam could theoretically be admissible based on "legitimate interests" (note that Austria's national Data Protection Act contains specific provisions for the processing of images, including videos). The DPA makes clear that the admissibility must be assessed on a case-by-case basis. Consequently, the technicalities of the device must be scrutinised.
Those assessment criteria include:
Before running out and buying your own private dashcam, you should be aware that the DPA provides a strong disclaimer. It clarifies that this is only a preliminary legal opinion, which may yet be affirmed or declined by the Austrian courts (or even the ECJ). The DPA also highlights that most commercially available dashcams will continue to be inadmissible due to their technical specifications. Those products impermissibly interfere with other road users' fundamental right to data protection and privacy.
In any case, the image processing needs to be in line with the provisions of the Austrian Data Protection Act, requiring inter alia the appropriate marking, keeping logs of the processing and conducting a Privacy Impact Assessment (according to Austria's DPIA Blacklist). These requirements will remain a major obstacle to dashcams becoming a common sight on Austrian roads.
Veronika
Wolfbauer
Counsel
austria vienna