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27 November 2020
Dashcams have become increasingly popular in recent years and a built-in dashcam is now the most sought-after feature among car buyers.(1) Buyers' primary motivation is self-explanatory: recorded footage can be used as evidence in case of an accident. In the United Kingdom, drivers can even report serious road incidents to law enforcement simply by uploading footage to the National Dash Cam Safety Portal.(2) Besides serving as electronic witnesses, dashcams also seem to subconsciously improve driving. A 2015 study found that 80% of high-risk driving events by novice drivers could be prevented simply by equipping their cars with dashcams.(3)
Hence, there are strong arguments in favour of dashcams. However, it is rumoured that they are incompatible with privacy and data protection law and thus illegal on Austrian roads.(4) The Austrian courts have been dismissive of the use of dashcams and, although the Data Protection Authority (DPA) at first upheld decisions to that effect, it recently published guidelines on how to lawfully use dashcams in Austria.(5)
Prior to the EU General Data Protection Regulation (2016/679) (GDPR), the Supreme Administrative Court issued a prominent decision on the admissibility of dashcams under Austrian data protection law.(6) 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 other road users' privacy.
Since the GDPR became applicable, the DPA has issued two decisions on the legality of dashcams in Austria. With recourse to the Supreme Administrative Court's ruling, the DPA found in both cases that dashcam footage was inadmissible:
Despite rumours to the contrary, neither the Supreme Administrative Court nor the DPA ruled that the use of a dashcam is generally inadmissible, but assessed the technical specifications of each device separately. This has now been clarified by the DPA's new guidelines.
Earlier in 2020, 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 the 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, a device's technicalities must be scrutinised.
The assessment criteria include as follows:
Before running out to buy a dashcam, please 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 European Court of Justice). 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 rights to data protection and privacy.
The image processing also must be in line with the Data Protection Act, requiring, among other things, the appropriate marking, keeping logs of the processing and conducting a privacy impact assessment (according to Austria's data protection impact assessment blacklist). These requirements will remain a major obstacle to dashcams becoming a common sight on Austrian roads.
At present, it seems that dashcams are rather neglected at the EU level. However, the market for dashcams is growing steadily and with the rise of autonomous driving, some kind of camera surveillance system in cars will be inevitable. Sooner or later, the admissibility of dashcams must thus be addressed comprehensively at the EU level.
For further information on this topic please contact Veronika Wolfbauer or Maximilian Trautinger at Schoenherr Attorneys at Law by telephone (+43 1 5343 70) or email (email@example.com or firstname.lastname@example.org). The Schoenherr Attorneys at Law website can be accessed at www.schoenherr.eu.
(2) See here.
(4) See here.
(5) See here.
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