In its judgment of 31 May 2012 in the case of Google Street View (BGE 138 II 346), the Swiss Federal Supreme Court endorsed the views of the FDPIC set out in its earlier recommendation almost in their entirety. In the following remarks, the key points of the decision are explained.
Judgment of the Federal Supreme Court on Google Street View: Decisions on the processing of personal data
Right to one's own image (BGE 138 II 346 E. 8)
The right to one's own image requires that no-one's image can be reproduced without that person's consent, whether in the form of a drawing, painting, photograph, film or similar. The Federal Supreme Court has confirmed in its judgment that even simply taking a photograph can be a breach of privacy. The publication of an individualised image, i.e. one that has not simply been taken by chance, without the consent of the person concerned is always a breach of privacy.
This means that the consent of the person(s) concerned must be obtained before publishing individual images of persons on the internet (e.g. in blogs, social networks).
Data processing subject to the Federal Act on Data Protection (BGE 138 II 346 E. 3)
Where a data processing operation is primarily connected with Switzerland, the Federal Act on Data Protection (FADP; SR 235.1) applies, and the FDPIC can investigate the case if system errors are alleged. A primary connection arises, for example, where data is collected in Switzerland, relating to Swiss persons, roads or places, and the data is published so that it can be accessed in Switzerland. Even if the data is processed again abroad and is not uploaded to the internet in Switzerland itself, this does not change the fact that a breach of privacy may have occurred in Switzerland.
If there is a connecting factor with Switzerland, this means that the FADP applies when personal data is processed, even if the personal data is saved on servers abroad (e.g. in cloud computing or distributed systems) or published from abroad.
Personal connection for photographs (BGE 138 II 346 E. 6)
Raw images of persons and pictures in which a person remains recognisable even after processing must be regarded as personal data. This is also the case for vehicle number plates and pictures of houses, gardens and other private spaces, as in such cases a personal connection can also be established without difficulty. It takes little effort to attribute the images to specific persons and it must be assumed that third parties will take an interest in the data and therefore be prepared to identify the persons concerned (cf. BGE 138 II 346 E. 6.5).
If these requirements are met, detailed pictures of buildings, vehicles or persons are deemed to be personal data. The processing of such data is governed by the FADP. The only exception is when data is processed exclusively for personal use by a private individual who does not disclose the data to third parties.
Use of information in the public domain (BGE 138 II 346 E. 8.2)
Thanks to technological advances in the storing, linking and reproduction of information, it is now possible to compile a personality profile as defined in Article 3 letter d FADP by simply using information that is available in the public domain. For the person processing the data this means that the express prior consent of the person concerned is required when a compilation is made of public (published) information (Art. 4 para. 5 FADP). If consent is not obtained, this normally constitutes a breach of privacy.
In practice this applies when, for example, information from various sources, e.g. registers, official publications, social networks, web pages and media reports, is put together in a single report.
Transparency in data processing and making the purpose known (BGE 138 II 346 E. 9.1 and E. 11)
Generally speaking, the persons concerned must be made aware of what is happening when data is collected about them. In addition, the persons concerned must be made aware of the purpose of processing and that they have the right to object to it (Art. 4 para. 3 and 4 FADP).
In the case of Google Street View recording trips, although the vehicles are clearly equipped with a rooftop camera, this is not sufficient to meet the requirements of the duty to provide information, even if the product concerned is generally well known. In the absence of further information, people are simply not aware that the object of the exercise is to travel the roads, systematically photographing them and then to publish the images on the internet without the consent of the persons concerned. In addition, members of the public cannot see whether these vehicles are actually taking photographs as they pass by.
Accordingly, advance notice in both the local and regional media and in particular in the print media must be given of Google Street View recording trips and of the activation of new images on the internet. Clear notice must also be given of the right to object. Publication in the local media should reach and inform as large a section as possible of the population concerned. This must be taken into account when choosing media and publicity channels.
Overriding interests only reluctantly upheld (BGE 138 II 346 E. 10)
To prevent data processing from causing an unlawful breach of privacy, the consent of the person concerned must be obtained, there must be an overriding public or private interest or it must be justified under a specific law. The Federal Supreme Court states in its judgment that not only the interests of the person processing the data, but also those of third parties (cf. E. 10.6.1) must be considered. Generally speaking, the court is very reluctant to hold that there is an overriding private and public interest (cf. E. 10.4). This means that the arguments in support of such interests must be highly persuasive in order to justify a breach of privacy.
The court must weigh up the contrary interests in each case of breach of privacy. In particular, it must decide whether the breach would be less serious or avoidable if additional resources were applied. For example, the fact that a service is offered free of charge or that a business is responding to competitive pressure would not normally justify a breach of privacy. When taking photographs of public places indiscriminately, there must be a considerable degree of justification if an unlawful breach of privacy is to be avoided.
Enclosed spaces, gardens and balconies as private areas (BGE 138 II 346 E. 10.7)
Enclosed spaces, gardens and balconies are regarded as the private domain of the persons they belong to, assuming they are not readily visible to normal passers-by. Publishing photographs of these private areas, which are not freely visible, without the consent of the persons concerned constitutes an unjustified and therefore unlawful breach of privacy, which should not be tolerated.
A similar situation arises in the case of the detailed photographs of houses and gardens obtained on recording trips: passing on these images (e.g. making them available or selling them) to third parties normally constitutes an unlawful breach of privacy unless the person concerned has consented. Those concerned can prohibit the data from being passed on to third parties and can demand that the photos of their property be deleted or the resolution reduced, so that not only people, but also garden furniture, toys, etc. are no longer clearly recognisable.
Complete anonymisation where there is an increased interest in the total protection of privacy (BGE 138 II 346 E. 10.6.4)
In the vicinity of sensitive institutions (such as schools, hospitals, homes for the elderly, women's refuges, courts and prisons) there is an even greater interest in the total protection of privacy. The Federal Supreme Court has therefore held that people appearing in images made of such institutions and their surroundings should be rendered completely anonymous before the pictures appear on the internet and if necessary, the images must be edited manually. This rule covers persons, vehicles, etc. seen at the entrance to such buildings, e.g. cars and people in a hospital car park.
The person processing the data must also ensure that once the photographs have been anonymised, not only vehicle number plates and faces, but also further identifying features such as skin colour, clothing, aids used by persons with disabilities etc. can no longer be recognised. If necessary, images must subsequently be manipulated manually.
In conclusion, the FDPIC would draw attention to Point 10.6.5: here the Swiss Federal Supreme Court holds that unlawful breaches of privacy that remain visible due to a flaw in the anonymisation process are a violation of Article 28 of the Civil Code (SR 210). The persons concerned can take legal action against such violations (Art. 15 FADP in conjunction with Art. 28 Swiss Civil Code).
Last update: August 2013