The operator of a kebab stand in Lower Austria was reported by police because his video cameras filmed areas that were not in his
The Company has no power of disposal over these assets. Specifically, parts of a nearby federal highway and a neighboring gas station were also captured by the cameras.
captured Moreover, the storage period was disproportionately long (14 days), information signs were missing.
The data protection authority then imposed a fine totaling € 1,800 (€ 1,200 for the filming of third-party footage and € 300 each for the violations of the storage period and labeling obligation), plus costs in the amount of 10% or 5 days of alternative imprisonment.
As a legal basis for this, the DPO has essentially used Art. 5 para. 1 lit. a and c as well as Art 6 para. 1 DSGVO (filming of foreign ground), § 13 para. 3 DSG
(storage period) and § 13 para. 5 DSG (labeling) is used.
The defendant filed an appeal against the penalty decision to the Federal Administrative Court.
This basically confirmed the DSB’s decision.
The penalties regarding storage time and lack of labeling were reduced by half to € 150, and the alternative term of imprisonment was reduced to four days.
The facts of the DSG regarding the excessively long storage period and the lack of labeling have been replaced by the following provisions of the DSGVO:
- Storage period: Art. 5 para. 1 lit. e and Art 6 para.1 lit. f GDPR
- Marking: Art. 5 par. 1 lit. a in conjunction with Art. 12 and13 GDPR
The BVwG assumes – not only in this decision – that the provisions on image processing of the Data Protection Act are not applicable due to the lack of opening clauses in the GDPR.
The ordinary appeal was declared admissible.