Expertise

European Commission
Directorate General for Justice and Home Affairs
Directorate C Civil
Justice, Rights and Citizenship

Brussels, 12 January, 2004

In response to the question concerning the compatibility with European Union law of the use of surveillance technologies by members of the public and non-profit organizations, and concerning the admissibility of such tools for the control of actions performed by the authorities, in particular actions carried out by the police forces, the European Commission, Directorate General for Justice and Home Affairs states the following:

The use of surveillance technologies is related to the processing of personalized data and therefore considered an intrusion into the privacy of natural persons. As such, it is subject to Directive 95/46/EC of 24 October 1995 regarding the protection of individuals in the processing of personalized data (AB1 Nr. L 281 of 23 Nov. 1994, 0031). However, it must be taken into account that the regulations of directive 95/46/EC are generally not applied to data processing for purposes of public security, national defense, national security and criminal justice (art. 3, sect. 2) and are applied only in a restricted fashion to journalistic, artistic and literary purposes (art. 9). For the latter, the regulations of the directive only apply in so far as it is necessary in order to reconcile the right to privacy with the right to free expression. If surveillance technologies are used for the purposes of generating evidence of possible offenses committed by officials against members of the public, their use must be considered as a journalistic activity as per art. 10 of the ECHR, and the corresponding precedents of the European Court of Justice. The same applies to projects involving the exercise of the basic right of freedom of art.

Furthermore it has to be taken into consideration that directive 95/46/EG is explicitly concerned with the protection of personalized data of private individuals (art. 1, 12th consideration of the directive). The integrity of members of the executive is, therefore, not the object of these Community Law regulations, granted that official duties carried out by members of the executive are not actions of private individuals, but sovereign actions.

The European Commission also wishes to point out that the Council of Ministers has issued a recommendation concerning the cooperation among the national authorities of the member states responsible for private security (2002/c 153/01). According to article 4 C 1 lit b of this recommendation, the cooperation between private security services and the national police forces is to be improved, in order to secure information relevant to the maintenance of public order obtained by private security firms. Therefore, the European Commission considers the permeation of the civilian spheres with security technologies not only as admissible, but as desirable, particularly with a view to the appreciation and protection of the freedom of services enjoyed by private contractors within the boundaries of the Community.

In conclusion, the European Commission, Directorate General for Justice and Home Affairs represents the view that the use of surveillance technologies by members of the public is in accordance with Community law. For this reason, any such efforts must not be rendered illegal by the way of national legislations.

The Directorate General