Are police prompting vacationers to violate AVG?

The police issued a warning to vacationers a few days ago. On its own site was a whole list of anti-intrusion tips - keep the curtains closed, timers for lights - as well as installing a smart doorbell that records what happens at the front door (1).

AVG applies

More often I read the argument that the AVG would not apply to consumers. Or that a smart doorbell is purely for domestic use so the AVG does not apply. The Personal Data Authority (AP), and other regulators, are pretty clear. The AVG also applies to consumers as soon as you film the public space or neighbors' property. This is easily the case with a smart video doorbell. In fact, a smart doorbell is equated with camera surveillance, according to the views of several European regulators (2). Late last year, for example, the Irish regulator shared guidance on this topic. In it, it is also clear that the AVG applies when filming public spaces (3).

So the AP can take enforcement action if your video doorbell is not properly adjusted. How soon this will happen I leave open to debate, but the Belgian regulator has already issued a fine for something similar. There, a couple was fined 1,500 euros because the cameras were not set up according to the rules (4). So it is certainly not inconceivable that the AP will issue a fine.

Purely personal use

But wait: what about the exception from Article 2(2)(c) AVG? As mentioned, the regulators are pretty clear that this exception does not apply when filming public space. Then there are the guidelines from the European Data Protection Board (EPDB) that add a little more nuance. You have to look at all the circumstances of the case. Wonderfully legal of course, but the EDPB also seems to really indicate that the AVG simply applies as soon as you film a piece of public space (5).

Is a smart doorbell allowed?

The theoretical answer to the above question is yes, but whether this is how it works in practice is another story. Suppose you have a detached house with a nice driveway and a video doorbell that only films the driveway/entrance, there is no problem. This is where the AVG exception applies. However, do you have a nice row house adjacent to a busy street with a beautiful park across the street? Then the AVG does apply. In other words, then you have to follow the roadmap of the Personal Data Authority (6). Read a few highlights here and then consider how you will do this in practice.

• You have to have a clear goal. Is there (demonstrably) a lot of nuisance in the street or greater risk of theft? Then you might have an argument. So a smart doorbell to speak to the package delivery man is not a justified goal even though people often buy it for that reason.

• Check with the vendor for privacy options. If you can blur faces or make parts black then that is advisable. You are responsible and not the vendors.

• Inform people that filming is going on. In other words, you should put up one of those fashionable stickers or signs that filming is going on.

• It is wise not to store images and certainly not in a cloud. Some vendors offer this as an additional option. This, in turn, may end up in America. That in turn raises other concerns.

• People also have a right to inspect camera footage. So make sure your inspection procedure is in place.

I write the above a bit jokingly, but this is what the Personal Data Authority seems to expect. Let's face it. If someone complies with this then it is the exception rather than the rule. So then you come to the conclusion that with a video doorbell you are soon in violation in the Netherlands.

Doorbells are watching you!

Now that the legal and practical part has been described, an important question remains unanswered. Are we as a society really waiting for all these cameras? On the one hand, we are talking about public space. Everyone there can be captured on camera. On the other hand, you can expect some privacy in our country. If I walk down the street, I don't have to expect to be filmed by a doorbell, do I? Or is that just part of these modern times? That remains an interesting discussion that I think is even more important than whether the whole AVG issue.

Smart doorbell or not?

The bottom line is that the AVG certainly applies to the smart doorbell. That does not mean that it is impossible to install a video doorbell privacy-proof, but in practice this happens very little. Then there is the point that a privacy-friendly smart doorbell will not really add value to the police so then what exactly is its point? Is it calling on the police to violate the AVG? No in principle not, because it is possible if you follow the rules. However, the advice given by the police is so brief that it is not surprising that people do not know the rules well.

The Personal Data Authority seems to advise against this type of doorbell, and the police, and other government agencies, seem to recommend it. Not crazy, then, that consumers will install these doorbells - they want to live in safety - but is it desirable? In my opinion, there is insufficient evidence that a video doorbell contributes to a safer society. If that changes then we can revisit a balancing of interests. The likelihood that people will follow the AP's roadmap properly is small in my view. In short at the moment I am not in favor of the smart doorbell aimed at the street. I'm curious what you think.

1. https://www.politie.nl/nieuws/2022/juli/15/04-zomervakantie-tips-om-een-inbraak-tijdens-je-vakantie-te-voorkomen.html

2. https://ico.org.uk/your-data-matters/domestic-cctv-systems-guidance-for-people-using-cctv/

3. https://www.dataprotection.ie/sites/default/files/uploads/2021-11/Guidance%20on%20the%20use%20of%20Domestic%20CCTV.pdf

4. https://www.gegevensbeschermingsautoriteit.be/burger/de-gba-legt-een-boete-op-voor-de-onrechtmatige-verwerking-bewakingscamerabeelden

5. https://edpb.europa.eu/sites/default/files/consultation/edpb_guidelines_201903_videosurveillance.pdf

6. https://autoriteitpersoonsgegevens.nl/sites/default/files/atoms/files/stappenplan_camera_bij_huis.pdf