Install a camera in the car that record what happens while driving and then use the images to clean the streets of thugs is one of those ideas that perhaps you have hovered you head. Caught red-handed who has made you a pirula Street, have the scene tucked in a memory card, and then… the weight of the law fall on the shoulders of that irresponsible.
The idea is cool, and is poetic justice. However, depending on the case might the weight of the law never to touch to the type that you played it on a roundabout or a Stop. Even a worthy of the Looney Tunes move could happen: the weight of the law hours on a trampoline (a trial) and up to be come you up… you. All that, if you don’t have account What says the law about the cameras on board, cameras on board the car or dashcams.
Is it legal or illegal to install a camera in the car?
The question is clear and direct, but does not seem to exist a concise answer. The ground beneath our feet is, even in 2016, so marshy as it could be a decade ago, for example. In the absence of response on the part of the Spanish Agency of data protection (AEPD), have put us in touch with two lawyers specializing in this field: Joaquín Muñoz Rodríguez, of the firm Ontier, and David Maeztu, of the firm Abanlex.
Before the question about whether or not are legal cameras aboard, Maeztu refers to occasions in which the AEPD has ruled, to infer “that not, given that it would understand that” It is a camera that captures images of public spaces”. He illustrates this with a real example which, given its complexity, we will see later. Anyway, following the logic of the AEPD through performances, concludes that “a camera cannot be put to record Street, as personal data of third parties would be taken”, according to concrete Maeztu.
The criterion of the AEPD is not going online than you might think intuitively when we speak of the particular recordings that we do with our own camera.
The complexity that surrounds this issue is precisely the feature that stands out Joaquín Muñoz first. “Looking for some light, also based on the occasions in which the AEPD has acted, explained that in his view”the key is whether the dashcam continued recording either is off and promptly user decision”.
In the first case, with a camera that record even with the parked car, we would talk about video surveillance. In the second, we would talk about a camera that recorded only punctually and at the request of the user, who wants to keep forever the memory of a trip. The use of cameras on board “would resemble more using a GoPro or some Google Glass”, detailing Muñoz.
Both lawyers agree to interpret as domestic and private applications that one makes with a camera until you use the recordings in a concrete way that transcends the private sphere; for example, uploading content to the internet or using them to denounce a traffic infraction. “However, as added Maeztu in reference to cases that are known to date,”It does not seem that the criterion of the Agency should be out there”.
The thin red line between private recording and video surveillance
The basic problem is that the AEPD has not published an official criterion. In fact, they are working on it, and perhaps one day manage to clear legislation. But while not to have it almost becomes necessary to consult case by case what happens when one has mounted a camera of this type in the car. A camera that is, according to Muñoz, “just at the limit of the red line that separates a video surveillance recording and what would be a home recording” illustrated.
The AEDP is pronounced when a recording out of the private sphere and falls squarely in the field of video surveillance. But also is responsible for determining if a recording is in one or another field, way which, in practice, is declared competent or incompetent in every event that may occur. If the recording is private, the AEPD has nothing to comment. On the other hand, if it is video surveillance, responsible for recording must comply with a number of conditions that, normally, the owner of a dashcam does not consider.
If the AEPD considered that the camera in the car performing video surveillance, these should be carried out respecting the data protection act.
The matter raises two main issues, Therefore, from the point of view of the protection of data of a personal nature and the protection of privacy and personal image. First, it would have to do if the installation of this type of cameras is assimilable to a video surveillance system and, therefore, if you must comply with the requirements of the data protection act and, in particular, on instruction 1/2006 of the AEPD. Then, in the case that not deemed a video surveillance recording but a recording domestic or private, would have to see what I could do with the captured images user.
Maeztu explains that, using a criterion by which we make particular use of the camera “We could use these images to a judicial procedure (demonstrate responsibility violation, etc.), but not to put them on the internet or so. Courts admitted as evidence recordings in which one has been part”. However, “with the criteria of the Agency, would have to consider that evidence have been obtained with violation of fundamental rights”, since personal data without authorization, have tried so they could cancel a trial. “It is a complicated issue and not particularly well resolved”, top lawyer Abanlex.
The evidentiary effects and the right to privacy
Do prevails the legitimate interest of the user capturing images for evidentiary purposes? Do prevails the respect for the data protection, privacy and self-image of people that cameras capture? The problem is centered between these two issues. A balance between the right of each record and others to not be recorded is where moving the AEPD.
In that sense, would have to determine if the recording is carried out is covered by the principles of appropriateness, necessity and proportionality that you require so that recording can accept evidence, for example in a trial purposes, without change to other rights are violated. Put another way, as recording is an interference with rights of third parties to capture your image, it is necessary to justify the need to capture images, for example to be able to prevent or investigate crimes.
The role of the AEPD consists in guaranteeing the right to privacy of persons that can capture a camera taping them.
“Joaquín Muñoz uses an example that is very graphic and is only too well known:”This need found justification in Russia, where before the proliferation of false abuse complaints, drivers installed cameras in the cockpits with the intention of being able to prove the bad faith of the complainant”. As to the suitability, we should see whether camera is the most appropriate measure to show that bad faith. If we stick to the content of the following video about attempts of fraud in Russia, anyone would say that install a dashcam is a good system to publicly denounce These practices:
And in terms of the proportionality? The measure of prevention should not be excessive. “The problem in terms of enabling or disabling the camera at the discretion of the driver is is in the very nature of this type of cameras to be connected always, in every way, that could be considered by the AEPD assimilable to a video surveillance system,” argues Muñoz.
Returning from the parallelism of Russia towards our country, according to the lawyer should be “If in Spain the number of crimes, accidents, thefts and other types of activity that can prove the dashcams is sufficiently significant to justify the installation of these cameras for drivers”. Would also be desirable “think about if these are the ideal measure to achieve the aim purported by the driver and if there are other valid means (witnesses, cameras in parking lots, cameras in public, etc.) that are less intrusive with the rights of pedestrians”.
Need, appropriateness and proportionality, to find the balance.
A practical example to understand the mess of cameras in the car, according to our legislation
To put some order among so much consideration theoretical, perhaps there is nothing better than going to a practical example. It is a procedure in which a citizen, once they rayaran you car and break you a mirror, it was decided to install a camera on the windshield, allowing this record even when it was not in the interior of the vehicle, thanks to a battery which gave the Chamber a range between 15 and 20 minutes.
As we have seen so far, we might intuitively think that this citizen was in his legitimate right; and as we have seen so far, the AEPD considered that a camera mounted in order to monitor what is happening around the vehicle functions as a video surveillance camera.
This case is illustrative of how what we believe is right according to the criterion of the AEPD may not be. Without going any further, the citizen who rode this camera explains that he asked in the Civil Guard, your insurer and even the same AEPD about the use of such devices, and that in all three cases the response obtained was favourable to the installation of the camera, when “to be home or particular use is not subject to the data protection act”.
However, the captured images were performed with reasons for video surveillance recognized by the citizen. And here is where the data protection Act distinguishes between “an exclusively private activity or family frame” and the fact to monitor a vehicle with a camera. The same may apply if you want to report any other fact, e.g. a traffic infraction, if the camera is indiscriminately recording the environment.
Article 6 of the data protection act mentioned in the resolution of the AEPD refers to the consent of the persons affected by the recording: “The treatment of the personal data will require the consent of the affected, unless the law otherwise” and in these cases:
- “When personal data are collected for the exercise of the functions of public administrations in the field of its competences”.
- “When they refer to parts of a contract or pre-contract of a relationship business, labour or administrative and are necessary for maintenance or compliance”.
- “When the processing of the data is intended protect a vital interest of the person concerned in accordance with article 7, paragraph 6, of the present law” (relating to medical prevention or diagnosis, provision of health care or medical treatment, or management of health services, health professionals or their equivalent).
- “When data listed in publicly available sources and its processing is necessary for the satisfaction of the legitimate interests pursued by the responsible for the file or by the third party whom the data are disclosed, provided that the rights and freedoms of the person concerned will not violate”, i.e., the case of posters of orange color that we see exposed in many places and even some highways CCTV , and no showing by the car of this procedure.
The difficulty of using images captured without the due consent in a judicial process
In fact, recording for surveillance purposes and without communication to the affected is something that the law reserves for the The State security bodies and forces, “in order to contribute to ensuring coexistence, the eradication of violence and the peaceful use of the roads and public spaces, as well as prevent the Commission of offences, misdemeanours and offences related to public safety”, as read in the organic law 4/1997. This standard only legitimates those bodies on the treatment of captured images on the public highway, and also establishes the conditions in which it should do so and forwards to the penalties of the data protection act when they detected a breach.
At this point, Joaquín Muñoz proposes a last stage. What think with some images captured by the driver who would like to use your insurer to justify some damage suffered in a road accident? In principle, we have the LOPD except the need for consent “when the communication that is to be made by recipient to the defender of the people, the Department of public prosecutions or judges or courts or the Court of Auditors, in the exercise of its assigned functions”.
It would seem that the insurer can provide images for this purpose… but if we releemos carefully, we will observe the law in hand is not so. The recipient of the images captured by the driver can not be an insurer, but the Ombudsman, the public prosecutor’s Office, etc. “According to the wording of the aforementioned article I understand that this transfer to the insurance would not be legitimate and should encourage, where appropriate, legal proceedings so that the driver could make it,” reflects the lawyer in the firm Ontier.
Inconclusive conclusion about cameras in the car
Unfortunately, today does not exist in Spain a general answer about the legality of the dashcams. The use we make of them, with recording continuous or punctual, and the use we give to the captured images, can determine the legality or illegality of both device and the reported content. Being all so circumstantial, almost it is necessary to examine each case to determine if using a camera in the car can bring us more benefits or damages.
The AEPD can be seen that we have been doing video surveillance with the dashcam without the consent of the persons recorded, even when the recording is not permanently, but for several minutes at a time. Only the State security bodies and forces are allowed to act as well, and always under the authorization.
Faced with this situation, the recommendation that provides one of the consulted lawyers, Joaquín Muñoz, is clear: “as it will be practically impossible to obtain the consent of a passerby who passed in front of the car at any given time, if you want to share on a social network a video recorded with the car dashcam should take care of” obfuscate any information allowing to identify the people who appear on the same or their vehicles”.
Would exist, that Yes, an exception: if it were a fact newsworthy, if by chance we grabáramos a scene of relevance for the general public, would prevail in this particular case the right to information on other rights. Practice, as we have seen, is a matter of analyze each case and see What is recorded, how and for what purpose.
To find out more… Legal texts and resolutions on cameras and video surveillance
- LOPD 15/1999, Organic law of protection of data of a Personal nature, where addresses the image as a personal object of protection.
- ROYAL DECREE 1720 / 2007, Regulation of development of the LOPD, where security measures are set.
- THE 1/1982, Regulation in relation to the protection of privacy and image of individuals.
- THE 4/1997, Regulation of the use of camcorders by the forces and security bodies in public places.
- Instruction 1/2006 on video surveillance, that specifies the concrete measures that need to be video surveillance systems and in which conditions are supported.
- 115/2012 report of the AEPD, on transfer of images from video surveillance from a parking lot to a particular to make this look who has hit his car and used the video as proof.
- Report of the AEPD 77/2013, on the legality of capturing images of public employees.
The linked regulations are current to the date of publication of this report.
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