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© AGENCIA ESPAÑOLA DE PROTECCIÓN DE DATOS
(SPANISH DATA PROTECTION AGENCY)
Official Publications Identification Number: 052-08-007-8
Graphic Design: ÉN
Printed by: NILO Industria Gráfica, S.A.
contents 4 INTRODUCTION
6 WHEN SHOULD DATA PROTECTION RULES BE APPLIED TO IMAGE PROCESSING?
8 HOW THE IMAGES SHOULD BE PROCESSED
10 IMAGE CAPTURING AND PROCESSING FOR SECURITY PURPOSES10 OBLIGATIONS
10 FILE REGISTRATION11 DUTY TO INFORM
13 THIRD PARTY DATA ACCESS CONTRACT
16 SECURITY MEASURES
17 DUTY TO CANCEL IMAGES17 SECURITY FIRMS
19 SPECIFIC CIRCUMSTANCES
19 ACCESS TO BUILDINGS AND GAMES ROOMS
21 FINANCE INSTITUTIONS
22 CAMERAS WITH ACCESS TO THE PUBLIC THOROUGHFARE
24 CAMERAS CONNECTED TO THE INTERNET
25 SCHOOLS AND ENVIRONMENTS WITH MINORS
27 PUBLIC SPACES OF PRIVATE USE28 TAXIS
28 OTHER SECURITY-RELATED USES
28 VIDEO CAMERAS OF THE NATIONAL SECURITY FORCES
31 VIDEO CAMERAS FOR TRAFFIC CONTROL PURPOSES33 SPORTING EVENTS
34 USE OF VIDEO CAMERAS WITH BUSINESS CONTROL PURPOSES
37 OTHER PROCESSING ARRANGEMENTS
37 PROCESSING IN SCHOOL ENVIRONMENTS FOR NON-SECURITY PURPOSES
38 VIDEO INTERCOM SERVICES
39 SCIENTIFIC RESEARCH AND RELATED USES
39 TOURISM PROMOTION AND RELATED PURPOSES39 GENERAL RULES 41 PERSONAL RIGHTS 42 GUIDELINES 44 FAQS
INTRODUCTIONImage capturing and/or processing for surveillance purposes is a very widespread practice in our society. Video surveillance generally seeks to safeguard the secu- rity of property and persons or is used in business settings to check on worker compliance with their occupational duties and obligations. Both purposes are valuable pursuits worth legal protection but subject to compliance with certain conditions. The use of technical resources for surveillance purposes impinges on the rights of persons, and this means that some guarantees need to be set beforehand.
Video surveillance enables personal information to be captured and sometimes recorded in the form of images. When its use affects identified or identifiable per- sons, this information is then deemed to be personal data for enforcement purpos- es of the Spanish Personal Data Protection Act dated 13th of December 1999 (Ley Orgánica de protección de los datos de carácter personal: LOPD for short).
Application of the LOPD to these systems poses a certain degree of difficulty in all aspects. First of all, the controller must be able to identify whether or not the use of the video cameras is subject to the legislation in force. Secondly, it is a complex matter to inform the data subject and do so with understandable, uniform and easily identifiable criteria.
4 Nonetheless, unlike the video surveillance carried out by the National Security Forces, which is regulated by special legislation, the only existing regulation in the private sector, the Private Security Act 23/1992 of the 30th of July lays down no precise data-protection indications. Therefore, it stands to reason, as reflected by various judgements of the Constitutional Court, that video surveillance is a particularly invasive measure and, hence, it is necessary to concurrently satisfy certain eligibility conditions in order to legally justify its processing. In addition, it is also necessary to define the principles and safeguards that must be applied.
For all these reasons, and to bring this processing into line with the LOPD, the Spanish Data Protection Agency passed Instruction 1/2006 of the 8th of November on the processing of personal data for surveillance purposes using video systems or video cameras However, together with video surveillance for security or workforce monitoring purposes, other new uses and services have also cropped up based on capturing and processing images recorded by video cameras or webcams. In the cases where these images belong to identified or identifiable persons, the LOPD is applicable.
The Guide will try to provide practical criteria and directions to ensure appropriate compliance with the current legislation in all cases.
The concept of personal data includes images when they refer to identified or identifiable persons. Therefore, personal data protection principles in force should be applied to the use of cameras, video cameras and any other analogous technical resource for capturing and/or recording images, whether for surveillance purposes
or for other purposes, under the following circumstances:
There is recording, capturing, transmission, preservation or storage of the images, including their reproduction or broadcasting in real time or the processing of the personal data derived from these images.
These activities refer to the data of identified or identifiable persons.
In order to be able to use a system of this nature it is not enough for it to meet the technical requirements that allow it to work. Its use must be legally justifiable. This
legitimacy will be attained under the following circumstances:
The consent of the data subject has been obtained.
E.g. These are still infrequent circumstances. Nonetheless the question has arisen in the case of parental access to crèche images or access to images taken in scientific research.
A rule with the status of law discharges this consent obligation, as in the cases laid down by the Private Security Act or in Article 20 of the Statute of Workers’ Rights.
6 E.g. Consent for the use of video cameras will not be required for ensuring security of goods and persons, providing they are fitted and maintained by an authorised security firm.
When any of the circumstances laid down in Article 6.2 LOPD or Article 11.2
LOPD occur, as applicable to resources of this type:
Furthermore, if the current legislation imposes any additional requirement, it will also have to be complied with.
There are also cases in which the LOPD is not applicable:
It is not applicable to image processing in the personal and domestic sphere, understanding this to be image processing performed by an individual in the context of an exclusively private or family-based activity.
E.g. Data protection principles do not apply to recordings made on a tourism trip or during a family celebration.
To image processing by the media in exercising their legitimate rights as laid down in Article 20 of the Spanish Constitution.
E.g. The broadcasting of television news or publishing of a newspaper.
Without prejudice to the specific provisions of Act 4/1997 of 4th of August regulating the use of video cameras by National Security Forces in public places, the LOPD is applicable to this processing on a supplementary basis in issues such as the creation of files by a provision of a general nature published in an official journal. This will be looked at later.
The use of camera and video camera facilities has to abide by certain rules governing the whole process from the capturing, storage and reproduction up to cancellation of the images. The controller has to take the following principles into
There must be a due proportionality between the end in view and the way the data is processed.
E.g. It would be clearly disproportionate to set up a video camera for watching a garage access and then use its technical characteristics – mobility, orientation, zoom etc. – for the purpose of obtaining images from inside vehicles driving down the public thoroughfare or from local residences.
The controller must inform data subjects on the image capturing and/or recording.
E.g. Even in cases in which the video cameras are used for legal and legitimate ends, the duty to inform data subjects still exists.
The use of camera or video camera facilities is admissible only when there is no less invasive alternative.
E.g. It is not necessary to record class students to monitor attendance if a traditional roll call will do.
Cameras and video cameras set up in private areas shall not obtain images from public areas.
8 E.g. A video camera used for private security purposes in a building should not capture images from the whole street where it is set up.
Partial and limited images of public thoroughfares may be taken when this is essential for the surveillance purpose in view or it is impossible to avoid doing so because of the location of the cameras.
E.g. If a camera must necessarily be sited in a bank entrance door or on the corner of a building, it should be angled so that the part of the public thoroughfare it captures is limited to the entrance under surveillance, without recording more of the public thoroughfare than is absolutely necessary. Images may not be taken from the rest of the sidewalk or the street.
In any case the use of video surveillance system shall always respect personal rights and abide by the rest of the legal system.
E.g. It would not be permissible to capture images in spaces protected by the right to privacy, such as the interiors of nearby dwellings, in bathrooms or dressing rooms or physical spaces outside the sphere specifically protected by the surveillance system.
The images will be preserved only for the time required for fulfilling the purpose for which they were captured.
E.g. As will be pointed out later in this Guide, Instruction 1/2006 on the preservation of images for surveillance purposes lays down a maximum time of one month. In those instances in which the images are captured for other purposes, the procedure will be subject to specific applicable legislation.
9 IMAGE CAPTURING AND PROCESSING FOR SECURITY PURPOSES
In this field the principles that have to be abided by and applied are those laid down by the legislation in force, in particular in the LOPD, the Regulation developing the Data Protection Act 15/1999 of 13th of December (Reglamento de Desarrollo de la Ley Orgánica de Protección de Datos de Carácter Personal: RDLOPD for short), approved by Royal Decree (Real Decreto) 1720/2007 of 21st of December and Instruction 1/2006 of 8th of November of the Spanish Data Protection Agency on the processing of personal data for surveillance purposes by means of camera or video camera systems.
This compliance will be dealt with in terms of the various aspects concerned.
FILE REGISTRATIONThe use of video camera surveillance systems might give rise to the creation of files.
The RDLOPD establishes in which cases a file will be deemed to exist:
File: Any structured set of personal data which are accessible according to specific criteria, depending on its means or method of creation, storage, organisation and access.
E.g. If a system is used connected up to a computer that stores the images on a hard disk or in any other computer support and it enables these images to be located in terms of criteria such as day and/or time of recording, cross-image correlation, the physical site recorded, etc.
If the video surveillance system generates a file, the controller must notify the Spanish Data Protection Agency beforehand, and register the said system with the 10 Agency’s General Register. This shall take place whenever there is any type of recording.
In the case of government files, these have first to be created by means of a provision of a general nature published in the corresponding official journal as laid down in Article 20 LOPD, and, subsequently, they have to be registered.
It should be borne in mind here that the Spanish Data Protection Agency makes the registration procedure easier by means of a predefined form for use with the Online Notification systemNOTE.
https://www.agpd.es/portalweb/canalresponsable/index-ides-idphp.php There are systems that do not record images and, therefore, Instruction 1/2006 indicates that any processing arrangement consisting exclusively in the real-time reproduction or broadcasting of images will not be considered as a file.
E.g. Closed circuit television controlled by screen display.
It is therefore not necessary to register them. This does not, however, release these systems from complying with the rest of the duties laid down by the LOPD and Instruction 1/2006 as detailed in this Guide.
DUTY TO INFORMProviding the proper information on any data collection procedure is a key element in the right to data protection and compliance with this requirement is therefore obligatory. However, the special characteristics involved in video surveillance call for the design of specific procedures to inform persons whose images are being captured. Instruction 1/2006 includes an informative sign whose use and display is
The file controller must also make available a printed handout with all the information laid down in Article 5 LOPD. This handout will, hence, include information at
least on the following:
The existence of a personal data file or processing arrangement, the purpose behind collecting the data and the recipients of the said the information.
The possibility of exercising the rights to data access, rectification, cancellation and objection.