DATA PROTECTION
In a judgment dated 5 October 2010, the Supreme Court (Hof van Cassatie/Cour de Cassation – the "Court") clarified certain key concepts of the Law of 21 March 2007 regulating the placement and use of surveillance cameras (Wet tot regeling van de plaatsing en het gebruik van bewakingscamera's/Loi réglant l'installation et l'utilisation de caméras de surveillance) (the "Camera Law").
The dispute before the court relates to a surveillance camera which recorded a criminal offence. The relevant images were provided to the police and the public prosecutor and later on used as evidence during criminal proceedings. During these criminal proceedings, the accused opposed the use of the images as evidence based on restrictions imposed by the Camera Law.
First, the accused in the criminal proceedings and plaintiff before the Court, claimed that the lawful use of images taken by a surveillance camera is limited to offences against goods and persons policed by the municipality. Indeed, Article 2, 4° of the Camera Law defines a "surveillance camera" as an observation system, the purpose of which is to prevent, establish or detect certain criminal offences policed by the municipality or to maintain public order, and which collects, processes or stores images for these purposes. The plaintiff argued that images taken by a surveillance camera may only be used for the purposes listed in Article 2, 4° of the Camera Law.
However, the Court decided that, while a surveillance camera may only be installed and used for the purposes listed in Article 2, 4° of the Camera Law, the use of the images taken by the surveillance camera is not limited to these purposes. According to the Court, Article 2, 4° of the Camera Law must be read in connection with Articles 6, §3 and 9 of the Camera Law which governs the use of the images taken by a surveillance camera. This latter provision establishes that the images can be used "as evidence of public annoyance or facts constituting a criminal offence or which cause damage and trace and identify the perpetrator, cause of annoyance, witnesses or victims. As a result, the Court decided that the images could be legitimately used as evidence of an offence other than those listed in Article 2, 4° of the Camera Law.
Second, the plaintiff argued that the companies that had provided the police and the public prosecutor with the disputed images are not "controllers" and hence were not permitted to transfer the images to the police. The "controller", as defined by Article 2, 5° of the Camera Law, determines the purposes and means for the processing of personal data. Article 6, §1 of the Camera Law stipulates that it is the "controller" who decides to install the surveillance camera. In this case, the companies that had provided the images to the authorities were not the same as those which installed the surveillance cameras. Rather, these companies succeeded the initial installer. According to the Court, such successors can act as "controllers" within the meaning of the Camera Law.
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