When football fans are secretly filmed on public property, this may constitute a breach of privacy rights under law. Such a measure could be legitimised if it were either part of police action or were carried out only in the event of an incident.
The Swiss Football League hit the headlines this spring with a plan for private individuals to accompany and secretly film groups of football fans going to away matches in order to have evidence available should there be rioting, damage to property, etc. At the beginning of the year, the Swiss Football League contacted us to clarify certain issues relating to data protection law. Our general position was as follows:
From a data protection viewpoint, the planned measure for private individuals to accompany groups of fans to away matches and make hidden video recordings is problematic, as it would involve private video surveillance on public property, which infringes the principles of proportionality and transparency in particular. Even though no specific incident may occur, everyone in the monitored area is recorded, including those who are behaving lawfully. Those affected are not aware that they are being filmed. This course of action may therefore infringe the privacy rights of the persons concerned, and it is at the very least questionable whether these recordings could be used as evidence in criminal proceedings. Furthermore, the persons concerned could bring a civil action, demand the deletion of the recordings and sue for damages. The measure is therefore of little purpose.
The situation could be assessed differently if one the following approaches were taken:
1. The measure is discussed with the police and directly integrated into their security plan. The person making the recording undertakes a policing task on behalf of the police. Whether this is possible depends on local cantonal or communal regulations and must in each case be assessed with the police force responsible.
2. If filming takes place on a purely private basis, i.e. without the agreement of the police, the camera may only be switched on in the event of an incident and only the event itself may be filmed. This means, at least, that persons who are behaving lawfully are not filmed without cause. This course of action could be considered proportionate and could presumably be justified on the grounds of an overriding interest.