Autonomous Driving: Legal Questions Concerning Video Recordings
Dr. Andreas Eustacchio, LL.M. (London LSE)
Associate Legal Partner
In Austria, vehicle manufacturers or test operators can test automated vehicles in genuine operating conditions on stretches of road provided for this purpose, once the appropriate permit has been granted by the Federal Ministry of Transport, Innovation and Technology (Bundesministerium für Verkehr, Innovation und Technologie, BMVIT).
Legal situation & test regions in Austria
There are a host of test regions for this: “Alp.Lab” in Styria, focusing on car safety; “DigiTrans” in Upper Austria for logistics; and flagship projects such as “Digibus Austria” for minibuses in Salzburg and “Connecting Austria” for lorry convoys in Vienna. The “5G Playground Carinthia” was set up last year in Carinthia to test the next standard in mobile communications, 5G – to name but a few.
If vehicle safety is the focus, for example, the tracks in the Alp.Lab enable the vehicle’s driving behaviour, along with its in-built technologies (ADAS = advanced driver assistance systems), to be tested in certain traffic situations and in particular weather conditions.
This includes aspects like the vehicle’s reactions to various wide and narrow bends on motorways, mountain roads, in tunnels, at toll booths or in particular weather conditions such as snow, rain or when the sun is low in the sky.
Automated Driving Regulation (AutomatFahrV) – Regulation on Framework Conditions for Automated Driving (19 December 2016)
Every test operator who runs tests on the basis of a permit issued to them by the BMVIT is provided with comprehensive testing infrastructure. As part of this, the test operator is obliged under the AutomatFahrV (Automated Driving Regulation, Regulation on Framework Conditions for Automated Driving dated 19 December 2016) to use accident data recorders or data recording devices built into the vehicle during the test drives. These devices are only permitted to record data from the electronic steering systems so that critical situations and accidents can be reconstructed.
The data generated in this way must in turn be made available to the BMVIT.
This begs the question of whether and to what extent it is legal for vehicles to use a video camera and/or an audio device to record the driving behaviour of the vehicle to be tested, and/or the behaviour of the test driver within the vehicle, and/or the environment surrounding the vehicle.
Recording – yes or no?
The AutomatFahrV provides that a permit must be sought from the Data Protection Authority (Datenschutzbehörde, DSB) if people are identifiable via the video recording and personal data is thereby being processed. Video recording may only commence once this permit has been granted. However, video recordings do not release the test operator from their obligation to record the above data using the data recording device.
In any case, the number plates of vehicles captured, as well as any people depicted, must be obscured in the video data recorded.
However, the AutomatFahrV provides that it is not necessary to obscure these details if this is contrary to the purpose of the test. In addition to this, the recordings may only be used internally by the testing organisation.
The Regulation only applies to test drives on roads with public traffic, with tests on private property not requiring data to be recorded using an appropriate data recording device. There is also no need to request a permit from the BMVIT for test drives of this nature. However, no matter whether the test drive is public or private, the test driver’s consent to the video recording must be sought for data protection reasons if the driver in the tested car can be identified.
Within the scope of the AutomatFahrV, the written consent of the driver must always be attached to the application for the testing of an automated vehicle (i.e. on roads with public traffic).
However, what happens if people (i.e. natural persons) located outside the vehicle are filmed by a dashcam during a test drive? Let’s assume that one of these people was the cause of an accident involving the test car and the people inside it. The AutomatFahrV does not expressly provide for this recording to be used for the identification, criminal prosecution and/or enforcement of/defence against claims for damages under civil law vis-à-vis this person.
Using the recording in this way would contradict the normative purpose of the Regulation under which the objective is to draw findings and conclusions from the test scenarios.
Outside of the scope of test drives, the Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) had already issued a judgement in September 2016 stating that video recordings filmed from a vehicle using a dashcam were in violation of the (then-applicable) Data Protection Act (Datenschutzgesetz, DSG 2000 old).
An example: a driver wanted to use a system “to secure evidence in the event of a road traffic accident” with cameras to the front and rear of the vehicle continuously recording in an encrypted format, with the recordings regularly overwritten every 60 seconds. The images recorded for a period of a maximum of 90 seconds would only remain saved in a readable form once powerful vibrations (in the event of a road traffic accident) had occurred or after an SOS button had been pressed. The Administrative Court stated that the registration of this use of data would be impermissible as the surveillance would only be permissible (and therefore proportionate) under the most lenient instruments available. However, as the permanent storage of image data would have been possible at any time through the pressing of the SOS button, the Administrative Court denied that the proportionality required under the law was present.
Anyone who violates Austria’s dashcam ban could face a fine. However, if a dashcam of this kind could get by without the SOS button discredited by the Administrative Court, it can be assumed that the Data Protection Authority would approve its use provided the appropriate application is made.
Despite their ban under administrative law, illegally obtained video recordings can still be submitted as evidence in proceedings in front of Austrian courts to enforce or defend against claims. It then depends on the judge in question if unlawfully created videos of this kind are permissible as evidence and if they can be taken as a basis for the decision of the court in question. In fact, Austrian legislation does not contain any law regarding the inadmissibility of evidence, even for evidence obtained illegally.
There is no legal regulation of this kind in Germany. The German Federal Court (Bundesgerichtshof, BGH) only recently decided (15 May 2018) that even a dashcam recording captured by a camera filming continuously, without being triggered by anything, could be admitted as evidence in a civil trial, despite breaching data protection law. However, the interests of the various parties must always be weighed up in the individual case in question.
Some reassurance to conclude
If you take videos for family purposes or personal reasons and film the landscape from your car as you drive past so you can remember it (or your holiday), you are not subject to data protection law, even if you accidentally film an accident while doing so.
About Dr. Andreas Eustacchio LL.M. (London LSE):
Associate Legal Partner of the ‘VIRTUAL VEHICLE’ Research Centre for Autonomous Driving in Graz
Attorney-at-Law (Austria), Hon.Prof.(FH); born in Zambia; Partner at EUSTACCHIO Attorneys-at-law, a Vienna (Austria) based law firm operating internationally with a focus on commercial law; advises companies and OEM’s in the field of digitalised and automated industry
Author and lecturer at several Austrian universities and visiting professor at the universities of Hanoi (Vietnam) and Sanya (China); Cavaliere (Order of Merit of the President of the Italian Republic)