The principle of necessity implies, first of all, that a controller must have recourse to a video surveillance device only where there are no alternative means less intrusive on the privacy of data subjects to achieve the intended purpose.
The principle of data minimisation in the field of video surveillance further implies that when a video surveillance system is installed, it must film only what is strictly necessary to achieve the purpose(s) pursued (‘adequate, relevant and limited to what is necessary’) and that processing operations must not be disproportionate to that purpose.
By way of illustration, an overview of areas where the CNPD considers that a CCTV system may or may not be problematic is given below in section 4.5. However, it is necessary to carry out a case-by-case analysis of the situation in order to analyse the necessity and proportionality of video surveillance, in particular in the light of criteria such as, for example, the nature of the place to be placed under video surveillance, its situation, its configuration or its attendance.
4.1. Limited field of view of cameras filming the interior, exterior or surroundings of a building or site
Cameras intended to monitor a place of access (entrance and exit, threshold, stairway, door, awning, hall, etc.) must have a field of view limited to the area strictly necessary to visualise the persons preparing to access it; those filming external accesses shall not mark the entire width of a sidewalk, if any, along the building or adjacent public roads.
Similarly, exterior cameras installed in or around a building must be configured in such a way that they do not capture the public road or the approaches, entrances, accesses and interiors of other neighbouring buildings which may fall within their field of vision.
Depending on the configuration of the premises, it is sometimes impossible to install a camera that does not include in its field of vision part of the public road, approaches, entrances, accesses and interiors of other buildings.[1] In such a case, the CNPD considers that the controller must implement masking or blurring techniques in order to limit the field of vision to its property.
-----------------------------------------------------
4.2. Continuous and continuous monitoring
- Supervision of non-employees
Permanent supervision of non-employees is not always permitted. For example, the CNPD considers it disproportionate to film the interior of a dining room with tables. The same applies to the terrace or counter of a café. Although there may be a certain risk of theft or vandalism in such places, it considers that the customers present will, on a permanent basis, be subject to video surveillance even though they choose a restaurant or café as a meeting place to have a good time around a meal, to chat, to have fun or to relax. Customers who stay in this type of place for a longer or shorter period of time must be able to legitimately expect not to be filmed during these private moments. The use of cameras in the dining room including the tables is likely to film the behaviour of each customer sitting at a table and may create discomfort or even psychological pressure for customers who feel observed throughout their presence in the restaurant. Such permanent monitoring must therefore be regarded as disproportionate to the intended purpose and constitutes an infringement of the customer’s private sphere.
- Supervision of employees
In the workplace,employees have in principle the right not to be subject to continuous and permanent supervision.
Compliance with the principle of proportionality means that the employer must have recourse to the means of supervision most protective of the employee’s private sphere. Compliance with this principle requires that, for example, automatic and continuous monitoring of employees should be avoided.
Thus, for example, the operator of a restaurant could not monitor his employees inside the kitchen, relying on the protection of his property. Employees would be subject to video surveillance almost permanently and it is clear that such surveillance can create significant psychological pressure for employees who feel and know that they are being observed, especially as the surveillance measures last over time. The same applies, for example, to the video surveillance of the interior of an office, an open-space, or a workshop in which one or more employees work permanently. Permanent supervision is considered disproportionate to the intended purpose and constitutes an excessive interference with the private sphere of the employee employed at his or her workstation. In this case, the fundamental rights and freedoms of employees must prevail over the legitimate interests pursued by the employer.
In order to avoid permanent and continuous surveillance, the controller must limit the field of vision of the cameras to the only surface necessary to achieve the intended purposes.
Thus, by way of example, the purpose of camera surveillance of a cash register in a shop may be to protect the controller’s assets against acts of theft committed by its employees or by a customer/user and to ensure the safety of its staff. However, in order not to infringe the privacy of employees, the camera should be configured so that employees behind a cash desk are not targeted, by directing its field of view towards the cash desk itself and the front of the counter, i.e. the waiting area of customers in front of the counter, in order to allow the identification of perpetrators, for example.
-----------------------------------------------------
4.3. Monitoring of employee performance and/or behaviour
The CNPD considers that video surveillance should not be used to observe the behaviour and performance of the controller's staff members outside the purposes for which it was set up.
Thus, an employer has the right to use images of an employee who commits theft of goods and which come from a video surveillance system used for the purpose of protecting property. However, he does not have the right to use the camera in order to find that an employee is talking too long with a client or a co-worker, or to then use the recordings as evidence, in order to take disciplinary measures against that employee. This would constitute a misuse of purpose prohibited by the GDPR.
-----------------------------------------------------
4.4. Places reserved for employees for private use
The CNPD considers that surveillance cameras must not film areas reserved for employees for private use or which are not intended for the performance of work tasks, such as toilets, changing rooms, smoking areas, rest areas, the room made available to the staff delegation, the kitchen/kitchenette, etc.
-----------------------------------------------------
4.5. Examples of video surveillance areas
The examples of areas below should be read and considered together with points 4.1 to 4.4 above.
A. Areas where the installation of video surveillance is in principle proportionate:
- all types of access, limiting the fields of vision of the cameras to the area strictly necessary to visualise the persons preparing to access them. Cameras must not target public roads or unnecessary spaces, even in an ancillary manner, such as a pointer;[2]
- storage rooms for goods/reserves/warehouses/storage halls or sheds (unless employees are permanently assigned to work in the stock, such as storekeepers);
- sales areas or areas of a shop/shop shelves/shopping arcade/exhibition area/sales and consultancy area (except permanent workstations behind a counter);
- a car park (indoor/outdoor/underground);
- delivery or loading areas/delivery and unloading platforms;
- a computer room/server room;
- an automatic car wash/carwash;
- a petrol pump;
- a safe / secure room / automatic deposit boxes;
- cash-in-transit premises / van room;
- technical installations or production machinery (provided that permanent workstations are not filmed);
- the technical room of a building/maintenance room/counter room of a condominium;
- archive premises;
- ATMs/banking machines.
B. Areas where the installation of video surveillance is in principle disproportionate:
- a public road / sidewalk (except in exceptional cases depending on the specific configuration of the premises; the field of vision may, however, encompass only an extremely limited part of the public road);
- the interior of a consumption area of a restaurant, a bar, a nightclub, etc. (catering room, consumption counter, terrace, canteen/cafeteria, etc.);
- the interior of a restaurant kitchen;
- the private entrance of a dwelling into a condominium building;
- a neighbouring land or building;
- the interior of an office with a permanent workstation;
- a rest or living room;
- the interior of a wellness area (sauna, deckchairs, etc.)
- training areas in a gym;
- toilets / showers;
- an office of the staff representative or its access (if it leads only to that office);
- a kitchenette;
- a smoking area;
- a cloakroom / locker room / fitting room;
- a garage workshop / a tyre assembly and dismantling workshop / a production workshop / a workshop;
- the hairdressing area of a hairdressing salon;
- the play area of a crèche.
C. Areas where the proportionality of video surveillance depends on the circumstances of the case and the measures put in place to ensure privacy
Video surveillance of the areas listed below may be permitted in some cases and not permitted in other cases. Whether or not video surveillance of such areas is proportionate will depend on the circumstances of the case, such as the nature, location or configuration of the premises, the nature of the activity carried out by the controller and the risks inherent in that activity, etc. It will also depend on the measures taken by the controller to make video surveillance less invasive of the privacy of data subjects (e.g. limiting the field of vision of cameras, using masking/cutting techniques, etc.). A case-by-case analysis must be carried out by the controller.
- the surroundings of a building;
- a waiting room;
- counters;
- a reception desk/reception desk;
- cash registers;
- a cash-counting room / a cash-processing room;
- the common parts of a building in co-ownership;
- the playground of a school (and its surroundings);
- a swimming pool;
- the roof of a building;
- a meeting room.
-----------------------------------------------------
4.6. Processing of sounds associated with images
Surveillance by means of video cameras shall only cover images excluding sounds. Live listening and recording of the sound associated with the images makes video surveillance even more intrusive and must be regarded as disproportionate.
-----------------------------------------------------
[1] Decision27FR/2021 of 15 July 2021 of the Restricted Panel of the National Commission for Data Protection, paragraphs 47-49.
[2] See Decision 27FR/2021 of 15 July 2021 of the Restricted Panel of the National Commission for Data Protection, paragraphs 47-49.