In its decision of 30 March 2011 in a case brought by the Swiss Federal Data Protection Authority against Google, the Swiss Federal Administrative Court imposed substantial conditions on Google's Street View offering.
The decision, reported on in our Swiss IP&Technology Briefing of June 2011, was appealed by Google to the Swiss Federal Supreme Court, which in turn issued its decision on 31 May 2012 (case 1C_230/2011). This latest decision, generally seen as a victory for Google, overturned the decision of the Federal Administrative Court in only one, albeit important, point.
Not surprisingly, the Federal Supreme Court agreed with the Federal Administrative Court that the raw data collected by Google and the resultant published images relating to identifiable persons constitute personal data within the meaning of the Swiss Data Protection Act.
The Court also agreed that both the collection of images of an individual and the publication of those images on the internet was an infringement of the individual's right in his or her own image. The Court did not accept Google's argument that the image was only accessory to the landscape being photographed.
Where the Federal Supreme Court differed significantly from the Federal Administrative Court was in its examination of the competing interests, on the one hand of the individual in having his or her own image protected, and on the other hand of Google. The Federal Administrative Court had only taken into account Google's private interest and had held that any public interest in the service offered by Street View was just another aspect of that private interest. The Federal Supreme Court on the other hand was prepared to accept that the interests of third parties could also be taken into account, in particular the interest in easy access to information for purposes of journey planning, property hunting or investigating unknown areas.
Having weighed these third party interests and Google's own interest against the privacy interests of individuals, the Court was willing to overturn the order that Google must deploy manual anonymisation to achieve a 100% success rate in the anonymisation of personal data and instead imposed the following conditions on Google: - Improvement of the usability of the existing personal data objection process. Here the Court imposed specific requirements to increase the size of the button for notifying problems and to include a clear label of "Request Anonymisation".
- Constant efforts to be made to improve the existing anonymisation software.
- The rate of failure in the automatic anonymisation process must be no higher than 1%.
With this, it would seem that Google's main objection to the earlier decision, that the costs of blanket manual anonymisation would make the Google Street View service unviable as a cost-free service and so that the offering would have to be withdrawn for the area of Switzerland, have been addressed.
However, the need for full (manual) anonymisation, not just of faces but of all potentially identifying features, remains for individuals photographed around sensitive locations such as hospitals, prisons, schools, courts and social service authorities. The Court was also very specific in its order that Google's mobile Street View cameras be dropped from a height of currently 2.8 metres down to 2 metres above ground in order to match the eye-level of the average pedestrian.
As a final point, it is interesting to note that the Court acknowledged the impossibility in the current environment of guaranteeing total protection from unauthorized publication of images as personal data is such a part of social reality online. This is perhaps the best explanation for why the Court departed from the carefully reasoned, dogmatic conclusions of the Federal Administrative Court and instead rendered this more pragmatic, practical decision.
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