Digital progress does not stop for hunters. Technical equipment, such as digital camera traps are today part of standard hunting equipment. They are used for observing wild stocks and are typically deployed in areas that are not accessible to the public. Regardless, they are in the data protection authorities focus. Hunters should be aware of applicable data protection requirements.
1. How it all started
The data protection discussion about camera traps is mainly triggered by media coverage of an incident that happened to a local politician in the Austrian district Kärnten. Said politician was caught in act by a camera trap with his mistress. The footage made its way to the local national and the German media. At some time, it caught the German data protection authorities’ attention and lead to a number of official statements namely from the Lower Saxony and Saarland data protection authorities. In the meantime, there have even been fines imposed for illegal camera trap operation.
2. Applicable Data Protection Law
Data protection issues around camera trap operation are divers and complex and start with determining the applicable data protection laws. In the end, this question is depending on the person or legal entity operating the camera trap and could lead to applying the (Federal) German Data Protection Act (BDSG) or the German States’ Data Protection Acts (LDSG).
2.1. Deploying Camera Traps under the BDSG
The BDSG applies to federal public authorities (Bundesbehörden), such as the federal forest administration and non-public persons and entities. The BDSG does not apply where a natural person deploys camera traps for private purposes without any connection to commercial activities. This may e.g. be the rare case where camera traps are deployed in a hunting context without any commercial interest.
Section 6b BDSG is governing deployment of cameras in publicly accessible areas that in principle also applies to operating camera traps. Section 6b BDSG stipulates that
“(1) Monitoring publicly accessible areas with optic-electronic devices (video surveillance) is permitted only in so far as it is necessary
- to fulfil public tasks,
- to exercise the householders right or
3.to pursue legitimate interests for precisely defined purposes
and if there are no indications that the data subjects’ legitimate interests prevail.
(2) The fact that the area is being monitored and the controller’s identity shall be made discernible by appropriate means.
Section 6b BDSG does, however, not apply to areas that are not accessible to the public. Here Section 28 (1) No. 2 BDSG applies and accordingly, operating camera traps under Section 28 (1) No. 2 BDSG is permitted
“in so far as this is necessary to safeguard justified interests of the data controller and there is no reason to assume that the data subject has an overriding legitimate interest in his data being excluded from processing or use […]”
Even if the BDSG would not apply, e.g. because a camera trap is used for purely private or family related purposes there are legal requirements in place. Affected third parties, e.g. hiker or property owners may have a claim for cease and desist under the provision of Section 1004 German Civil Code (BGB). Enforcing such claims does not fall in the competency of the data protection authorities. Rather the affected persons would need to bring action to the civil courts.
2.2. Deploying Camera Traps under the LDSG
German States’ authorities (Landesbehörden) data processing (e.g. by the 16 state forest administrative bodies) is governed by the LDSGs. These laws each provide for provisions on operating video cameras, such as Section 30 of the Hamburg Data Protection Act (HambDSG).
“(1) Monitoring publicly accessible areas and non-public areas in official buildings being subject to particular dangers with optic-electronic devices (video surveillance) is permitted only in so far as it is necessary
- to exercise the householders right,
- to protect persons and property or
- for monitoring access rights
and if there are no indications that the data subjects’ legitimate interests prevail.”
3. Requirements for Operating Camera Traps
Regardless of differing applicable legal frameworks, there are general underlying principles for operating camera traps. Applying these principles may severely reduce data protection risks. Applicable provisions all rely on the concept of balancing interests of the person or entity deploying the camera trap with the affected data subjects’ privacy rights. As a first step in such assessment, one must find the interest in deploying camera traps. In a hunting context, camera traps are typically used to identify wild stock and facilitate hunting opportunities. For active hunters this is nothing less than carrying out their right in looking after and protecting their wild stock and hunting it. Accordingly, there is typically a legitimate interest in place for using camera traps for hunting purposes. This was also explicitly decided in a recent decision by the Essen Regional Court (Landgericht).
Whether or not affected data subjects have opposed and prevailing privacy interests would usually depend on their right for being in the area of surveillance. For hunting facilities such as tree stands or feeding places, there are provisions restraining public access in certain states’ forest acts, e.g. in Section 3 Forest Act Nordrhein Westfalen (LFG NRW) or Section 16 (1) Forest Act Hessen (Hess LFG). In such case there would usually not be any data subject’s legitimate interest in place where the camera trap covers such areas.
A similar assessment applies for deploying camera traps on private property where the public is not permitted to enter. Here data subjects trespassing would not be considered having legitimate interests as there is no right for being in that place. As the case may be, the property owner and other persons being permitted to enter the property might have legitimate and prevailing interests. Where these persons are known, consent into deploying a camera trap may serve as a data protection justification.
As a general compliance measure, it is advisable adjusting the camera trap in a way preventing to cover natural person or at least covering them in a manner that does not allow for identifying these persons. Where this approach is successfully applied, data protection law would not apply at all and there are no data protection restrictions. Accordingly, the Saarland data protection authority advises in its guidance on camera traps to install them low (maximum waist-high) and to adjust them facing down.
4. Signs and other Formal Requirements
Under applicable data protection law, there is a clear requirement for making any deployment of (video) cameras known to the public before entering a covered area. This is typically done with sighs. When deploying camera traps and placing respective signs, there is a particular risk that camera traps are discovered and taken away. Camera traps being taken away would certainly solve data protection problems, but would not be in the best interest of the person deploying the camera trap.
The Saarland data protection authority suggests making the fact of operating camera trips known to the public by publishing it twice a year in the respective community’s official news sheet (Gemeindeblatt). Whether this legal opinion in fact is supported by the respective provisions wording may well be discussed. It would rather be prudent providing signs in a broader circle around the area where camera traps are used.
When deploying camera traps that may also cover natural persons, general data protection obligations apply to the “data controller” deploying the camera trap. One of those obligations is implementing and maintaining the so called “records of data processing activities“ (Verfahrensübersichten) on camera trap operation and other data processing. In case the data controller has not appointed a data protection officer, operating camera traps must also be reported to the data protection authority under Section 4d BDSG or a respective provision in the LDSG.
Usually private hunters would not be under the obligation to have an appointed data protection officer and must under data protection law register camera trap operation to the data protection authority where natural persons may be affected. As this and maintaining the records of data processing in fact is often not carried out in practice, it is even more important preventing to cover any natural persons by camera trap observation in order to prevent such data protection obligations.
Data protection obligations do also apply to data processing in a hunting context and make operating camera traps in compliance with data protection law a rather challenging exercise. The first measure for risk mitigation must always be preventing natural persons being covered by camera traps. Even though the hunter may have good reasons for operating camera traps he must have in mind, there would always be data protection risks remaining.