ON THE POSSIBILITY OF MONITORING THE EMPLOYEES AT THE WORKPLACE THROUGH CAMERA, OR HOW FAR CAN REACH THE EMPLOYER’S CONTROLLING RIGHT?

I. The background rules of monitoring the workplace by cameras

1. The Labour Code defines in a general manner the limits of exercising the employer’s controlling rights, in accordance therewith the employer may control the employees only in the frame of their behaviour connected to the employment. The employer’s control and the tools, methods applied in the course thereof may not result in the violation of the human dignity. The private life of the employees may not be controlled, and the employer has to notify in advance the employee on the use of those technical devices, which serve for monitoring.

2. With regard to the short-spoken provisions of the Labour Code, the Hungarian National Authority for Data Protection and Freedom of Information (“NAIH”) has established the detailed rules of monitoring by camera at the workplace in the form of recommendations. Besides the above, the provisions of Act Nr. CXII of 2011 on Informational Self-Determination and Freedom of Information (“Infotv.”), Act Nr. CXXXIII of 2005 on the Rules of Personal and Property Protection and Private Detective Services (“Szvtv.”) and Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data shall also apply.

II. The basic aspects relating to the placement of the cameras

1. Prior to the commencement of monitoring the workplace through cameras, the purpose thereof and the data management connected thereto shall be precisely defined, under the condition that only those purposes may be accepted as lawful which are enlisted in the Szvtv. as follows: protection of the human life, personal integrity, personal liberty, custody of dangerous materials, protection of business, payment, banking and securities secret,
property protection (“principle of purpose limitation”). In lack of such a legitimate purpose monitoring the workplace by camera may not be proceeded.

2. No camera may be placed in order to control whether the employees fulfil or not their working duties, further the intensity of their work and to monitor their behaviour shown at the workplace.

3. As per the general rule, no camera may be placed in such premises where employees permanently work, thus no camera may be operated in offices and other places of work. Only those offices and premises of work are excepted, where the life or personal integrity of the employees, or where the equipment or other assets of high value stored are exposed to an actual and direct danger (for instance an assembly hall, where such devices are placed which may harm the life or physical integrity of the employees, or a place where high performance and high value machines are placed.) The hypothetical, alleged possibility of the harm of the life, physical integrity or the assets is not sufficient to the monitoring.

4. While monitoring by camera, the human dignity shall be respected absolutely, under all circumstances. No monitoring by camera may take place in such premises where the monitoring may violate the human dignity, so especially in changingrooms, bathrooms, toilets, and such premises where the employees spend their break-time. These premises may be monitored only exceptionally, only when nobody is allowed to lawfully stay there (e.g. public holiday, out of working time).

III. The viewing angle of the cameras

1. In respect of the single cameras the principle of purpose limitation has also to be asserted, moreover, the other principles aiming at the protection of the personal data of the employees shall also be enforced, thus the principle of the proportionality and consideration of interests.

2. In accordance with the above principles, if the cameras’ viewing angle show the entire place, then during the time when at the workplace, based on the employer’s instruction, work is carried out, the camera may not record image and/or voice, it has to be switched off, on the premises recording image and/or voice is only permitted during public holidays and out of working time. Exceptionally, cameras may be operated also in premises serving as place for continuous work during working time ordered by the employer, however, the viewing angle of the cameras may show only the specific asset and its direct surrounding which the employer intends to protect through the placement of the camera (for instance: if in the office a safe or a high value device was placed, then the viewing angle of the camera may only show the safe, the device and its direct surrounding).

IV. Storing and reviewing the footage recorded by the cameras

1. Reviewing the footages of the cameras may also take place only within certain limits.

2. To review only the persons carrying out personal and property protection services bearing any of the below qualifications are entitled: security guard, bodyguard, property guard or safety organizer.

3. The review is permitted only to prevent, interrupt any unlawful act (for instance: suspicion of an offence or crime) or to use it as an evidence in the course of judicial or another administrative procedure.

4. In lack of the use of the recorded image and/or voice, it shall be destroyed or deleted within three working days as of the recording.

V. Registration obligation to the data protection register

1. If the cameras placed by the employer at the workplace record data also on third persons (e.g. clients or guests) other than the employees (e.g. cameras placed at the entrance door or in the corridor): the employer shall separately, in a distinctive manner notify the persons entering into the area thereof. In this case the employer has to register the camera surveillance and the data management connected thereto into the data protection registry kept by the NAIH. However, if no data will be recorded relating to third parties, then the employer has to previously inform only the employees, in such case the employer has no notification obligation towards the NAIH.

VI. Legal consequences

1. If the camera surveillance at the workplace does not meet the requirements as defined above, then the NAIH will most probably qualify the employer’s behaviour as unlawful in the course of a possible investigation, as this violates the personal rights of the persons concerned.

2. In case of breach of law, the NAIH may apply vis-àvis the employer the legal consequences specified in the Infotv., thus – among others – it may state the unlawful handling of personal data, may order the sequestration, deletion, annihilation of the unlawfully handled or used personal data or may impose a fine. The fine may amount from HUF 100.000 to HUF 20.000.000 (approx. from EUR 300 to EUR 65,000). Besides, those persons, whom the personal rights are violated by the camera surveillance, may file an action for damages against the employer

 

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