Situations to which the privacy law does not apply
The Wet bescherming persoonsgegevens (Wbp) [Dutch Data
Protection Act] does not apply to (analogue) video
cameras that do not record images, or to webcams that
are intended to show images of public spaces, without
focusing recognisably on the individuals using them. Incidentally,
the situations to which the Wbp does not apply will also have to comply
with certain standards. The employer must always show himself to be
a ‘good
employer’,
by observing the standard of due care to be observed
in society.
Grounds for the use of video camera surveillance
The installation of a video camera is permitted where
essential for the promotion of your employer’s
legitimate interest. Your employer must first perform
a privacy assessment. This means that your interests
and rights must be weighed against your employer’s interest.
Your employer must be able to substantiate this weighing
process with you, the works council and, where necessary,
the Dutch Data Protection Authority (Dutch DPA) [College
bescherming persoonsgegevens (CBP)] or a court of law.
Legitimate interest
The protection of property is one example of a legitimate interest on the part of your employer. Video surveillance that has been introduced in order to protect employees and customers could also be a legitimate interest. So, the employer will be able to install cameras in a petrol station in order to film you and the customers for a certain part of the day in order to discourage robberies. However, the employer must ensure that you and the petrol station’s customers know that camera surveillance is being used. There are various ways of doing this, for example by hanging up notices indicating that video camera surveillance is present in a certain room or area. For security purposes, it is not generally necessary to observe staff on a permanent basis.
The following starting point applies: images should not be retained
in excess of 24 hours. This period may be exceeded
for good reason only.
Hidden cameras
In principle, your employer is not permitted to use hidden cameras. However, your employer could even have a legitimate interest in the use of this type of camera. This would be the case, for example, where a high level of theft is being experienced within an organisation, a situation that the employer has been unable to resolve despite various efforts on its part. In these circumstances, your employer will be permitted to install a camera on a temporary basis, as a last resort in his attempt to identify the culprit.
However,in this situation, the employer must
ensure that all employees and
the works council are informed
beforehand of the possibility
that in general hidden cameras
can be used.
Alternatively, the employer
could, of course, bring in
the police.
Works councils and camera surveillance
The Wet op de ondernemingsraden
(Wor) [Works Councils Act] states
that works councils will have
right of approval in respect
of a decision to introduce an
employee monitoring system or
in respect of the decision to
introduce a system that could
be used to monitor the empoyees.
Agreement can be sought on the possible circumstances in which hidden cameras
can be used, on the limited duration of its application and on the safeguards
and the applicable procedures. In organisations without a works council or representatives
of the staff, employees must
at least be notified of the use
that can be made of the camera
system. These agreements can
be layed down in, for example,
house regulations.
All camera systems, whether
used to ‘monitor’ or
record images, are to be regarded
as employee monitoring systems
within the meaning of the Wor.
The works council’s consent
is not required when camera’s
are used incidentally (to combat
theft or fraud, for example).
Neither is that consent needed
when camera surveillance is
not being used to monitor employees
or in case it can not be used
to check the employees. This
would be the case where camera
surveillance is a security
measure used to protect an
office building after office
hours. However, in practice,
it is recommended that any
employer wishing to use camera
surveillance on an incidental
basis discuss this with the
works council. For more information,
please see the brochure entitled
Privacy: checklist voor de
OR [Privacy: Checklist for
the Works Councils]. This
checklist provides works councils
with a number of guidelines
that are useful when seeking
to achieve an appropriate level
of privacy protection within
an organisation.
Notification obligation with the Dutch DPA
If an employer uses digital recording equipment,
he is obliged to notify the Dutch DPA of this fact. However,
if he installs a camera for the protection of individuals,
buildings, goods and production processes, he could be
released from this obligation under Article 38 of the
Vrijstellingsbesluit [Dutch Data Protection (Exemptions)
Decree]. Incidentally, should he be exempted from the
above obligation, the Wbp will continue to apply to him.
For more information, please see the fact sheet entitled
Melden en vrijstellingen [Notification and Exemptions].
If your employer has failed
to inform you of his camera
use, the use of cameras will classify as hidden
camera surveillance. In this situation, apart from
notifying the Dutch DPA of
his use of cameras, the employer
is also required to request
a prior investigation before
activating the camera surveillance.
For more information, please
see the fact sheet entitled
Prior
Investigation [Voorafgaand onderzoek].
Your rights
Pursuant to the Dutch Data Protection Act, you
are entitled to information on your personal data and
also to access to, supplementation, correction, erasure
and blocking of said data. You are also entitled to lodge
an objection against certain types of use to which your
employer puts your data. For more information, please
see the fact sheet entitled Data
Subjects and Their Rights [Rechten van de betrokkene].
If you have any questions or complaints
Your first course of action must always be to approach
your employer with any questions or complaints you
may have. Please see the fact sheet entitled Mediation
by the Dutch DPA in Respect of Your Data [Bemiddeling
door het CBP inzake uw gegevens] for information on how
to exercise your rights in disputes. If
you feel that your personal data have been used unlawfully
and your employer fails to respond to your complaint
or fails to do so to your satisfaction, please see the
fact sheet entitled Your
Complaint and the Dutch DPA [Uw klacht en het CBP]
for information on other steps open to you.
All Dutch DPA’s publications on video camera
surveillance can be found in the theme file Cameratoezicht [Camera Surveillance].