Street views on the internet – Decision of the Federal Supreme Court

On 31 May 2012, the Federal Supreme Court ruled on the data protection aspects of Google Street View. The main points at issue were the applicability of the Swiss Data Protection Act, the requirements for automatic anonymization, anonymization in the vicinity of sensitive facilities, and the capture of images in the private sphere which would not normally be visible to passers-by.

The Federal Supreme Court, in its decision BGE 138 II 346, ruled on the competence of the Swiss authorities and courts to deal with the substantive issues. The processing of data is deemed to fall under Swiss data protection law, and therefore within our sphere of competence, if there is a strong enough link with Switzerland. This applies even if the server is located outside the country. In the case of Google Street View, information on people, streets and squares is collected in Switzerland and published, and the information can be accessed from Switzerland. The importance of the Court's judgment is that the Swiss Data Protection Act also applies to data processing that is carried out abroad if there are sufficient links between the data and Switzerland.

An important aspect of the whole case had to do with whether Google was required to automatically anonymize all faces and vehicle registration plates before publishing the images on in its Street View service. The Federal Supreme Court granted an error rate of approximately 1% for the automatic anonymization process. However, it said that the following 5 conditions had to be fulfilled:

  • All technical means available should be used to strive for complete anonymization, and the automatic anonymization process should be constantly adapted to technological progress.
  • Users must be offered a clearly visible link - marked, for example, with the words "request anonymization" - so that inadmissible content can be anonymized.
  • Persons and vehicles photographed in the vicinity of sensitive facilities - in particular women's shelters, retirement homes, prisons, schools, courts and hospitals - must be completely anonymized before publication on the internet. This must be done in such a way as to ensure that certain distinctive features, such as skin colour, clothing, technical aids for the disabled etc. cannot be identified.
  • Private spaces (enclosed areas, gardens, etc.) must be respected. Consequently, any images that are taken with a camera placed at a height of over 2 metres, and which provide views that would not normally be visible to passers-by, must not be published on Street View. If the consent of the individual concerned has not been obtained, any images of such private spaces that have already been published must be removed.
  • Before any new Street View imagery is gathered or images are published in Street View, the relevant information must be published in the media and attention clearly drawn to an individual's right of objection.

We are currently working with Google on the implementation of the conditions imposed by the Federal Supreme Court and will be keeping the situation under constant review.