German GDPR fine for camera surveillance in warehouse

The State Commissioner for Data Protection (LfD) Lower Saxony (the "Regulator") has issued a €10.4m fine against notebooksbilliger.de AG ("NBB") for data protection violations. NBB is based in Sarstedt in Lower Saxony where it also operates its central warehouse. NBB is an eCommerce company that sells consumer electronics including laptops, smartphone, tablets and PCs. The case concerned the video monitoring of employees in the warehouse for a  two period.

The Regulator's investigation was started in 2017. NBB claims it used the camera to track the flow of goods in its warehouse. In the event of missing or damaged goods, the stored records would then be examined "retrospectively for clues". NBB claims the procedure is standard for shipping or logistics companies. However, while the Regulator acknowledged the installation of the cameras was to prevent and investigate criminal offences and to track goods, it argued the monitoring was not justified. The Regulator explained:

"Video surveillance to uncover criminal offenses is also only lawful if there is justified suspicion against specific persons. If this is the case, it may be permissible to monitor them with cameras for a limited period of time. At notebooksbilliger.de, however, video surveillance was neither limited to a specific period of time nor to specific employees. In addition, the recordings were saved for 60 days in many cases, which is significantly longer than necessary."

"We are dealing with a serious case of video surveillance in the company," says Barbara Thiel (from the Regulator), "Companies must understand that with such intensive video surveillance they are massively violating the rights of their employees". The allegedly deterrent effect of video surveillance, which is repeatedly put forward, does not justify a permanent and unprovoked interference with the personal rights of employees. If that were the case, companies could extend surveillance limitlessly. The employees do not have to give up their personal rights just because their employer puts them under general suspicion, " said Thiel. "Video surveillance is a particularly intensive encroachment on personal rights, because theoretically the entire behaviour of a person can be observed and analysed. According to the case law of the Federal Labor Court, this can mean that those affected feel the pressure to behave as inconspicuously as possible in order not to be criticized or sanctioned for deviating behaviour."

The Regulator also noted that the some of the cameras were monitoring sales areas where they could monitor customers as well as employees. These cameras monitored seating areas where customers could test electronic products. This meant customers would stop for longer periods of time. This contributed to the Regulator finding the monitoring to be disproportionate.

NBB has redesigned its video monitoring so that it is now acceptable to the Regulator. However, it argues that the video monitoring was proportionate and was not used to monitor employees behaviour or performance. NBB has appealed the amount of the fine before the Bonn Regional Court, arguing the turnover of the company cannot be the decisive basis of assessment for any fines. It has also asked the court to clarify if "a data protection authority is able to dispense [a fine] without determining a specific violation by a manager in the company."

If you found this interesting, there's a lot more comment you may find helpful on UpData, which provides regular updates on contentious, criminal and insurance risks relating to data, from cyber-attacks to regulatory enforcement.