Oh Dashcam, what are thou?
A new law on surveillance cameras has been adopted by Belgian Parliament for entry into force on 25 May 2018 along with GDPR. Rules on the use of dashboard mounted cameras (“dashcams”) by private persons however seem to be absent in this new legislation.
Today, dashcams used by private persons are subject to the Belgian Privacy Act but are generally not qualified as “surveillance cameras” by the Privacy Commission. Dashcams are exempt from privacy legislation if used for household or domestic purposes (e.g. recording your day out with your motorcycle or car club). On the other hand, when used for example to substantiate a potential insurance claim, the provisions of the Belgian Privacy Act have to be respected, including notification of the camera to the Privacy Commission. About 160 notifications for a “dashcam” or “dashboard camera” can be found in the public register of the Privacy Commission today.
The new law amends the existing camera law of 2007 to exclusively addresses the use of surveillance cameras by private entities and public entities other than police and intelligence services.
The new law defines surveillance camera as follows: “an observation system for surveillance and supervision (red. neither are specified further) of an area”. While the old definition was more explicit on the objective of surveillance or supervision in scope of the law, notably by referring to the notion “crime”, the new definition is less specific and thus raises the question of what is to be considered as “surveillance” or “supervision” in scope of the new law.
Depending on the area in which the cameras are located, permitted use of surveillance cameras differs. the term “area” is defined explicitly and divided in three categories: (1) non-enclosed, (2) enclosed public and (3) enclosed non-public. An “enclosed area” is a location clearly marked or identifiable as enclosed (e.g.: a sign states “private property” even if not fenced off). Any other area is a non-enclosed area, with the relevant definition also explicitly mentioning public roads.
Under the new law, the use of mobile surveillance cameras (potentially a dashcam) in non-enclosed areas, such as public roads, has been limited to specific controllers: municipal authorities or anyone acting on behalf of such authorities. In addition, they are limited to specific purposes (detecting parking violations) and types of mobile cameras (Automatic Number Plate Recognition cameras). Camera-equipped vehicles also have to be clearly marked as such. The new law bans private persons from using mobile surveillance cameras in non-enclosed areas. Note in this respect that a camera serving various purposes classifies as a surveillance camera if one of the purposes of the camera is indeed “surveillance” or “supervision” in in scope of the camera law.
For dashcams in private cars on public roads, this leaves us with several questions: when could or would such a dashcam be qualified as a ‘mobile surveillance camera deployed in a non-enclosed area’ (note that some current camera notifications in the public register indeed specify the purpose “registration of/defence against road rage against myself or others”)? Would any exemptions apply and on what grounds? How is the exact purpose of a dashcam determined? Could this purpose be requalified and by whom? And how about secondary use of images from a dashcam that was destined for household use only (e.g. the police seizes a dashcam after an accident)? Or have the amendments no impact and will GDPR (as successor to the current Belgian Privacy Act) be the only relevant legislation for dashcams used by private individuals?
Neither the new law nor the legislative dossier answers these questions definitively or even tentatively. For some reason, private use of dashcams appeared to be of no real concern to the legislators. Hopefully, some questions are answered by 25 May 2018, when the legal changes enter into force along with GDPR.
StéphanieDe SmedtAttorney at law Associate
Stéphanie De Smedt is a member of the Loyens & Loeff Litigation & Risk Management Practice Group in Belgium and a key member of the firm-wide Privacy and Data Protection Team, the Automotive Team and the Healthcare & Life Sciences Team. She is an associate in our Brussels office.T: +32 2 773 23 77 E: firstname.lastname@example.org
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