Swiss Federal Supreme Court Lowers Requirements on Google Street View
8. August 2012 – On 30 March 2011, the Swiss Federal Administrative Court ruled on a claim submitted by the Federal Data Protection and Information Commissioner (FDPIC) against Google regarding Google Street View. In particular, the Administrative Court determined that all faces and licence plates must be rendered completely unrecognisable prior to the pictures being put online (for details, see the News dated 05.05.2011) Google appealed the Administrative Court’s decision to the Swiss Federal Supreme Court, which partly upheld the appeal in a decision dated 31 May 2012. The decision, which is final and may not be appealed, is published on the Court’s website (decision 1C_230/2011, planned for publication).
The Swiss Federal Supreme Court first held that Swiss, rather than U.S., data protection law applied. This was due to the fact that the images used in Google Street View are captured in Switzerland, include information about people, streets, and places in Switzerland, and are available in Switzerland.
The Court next dealt with the question of whether the pictures on Google Street View contained personal data. According to art. 3 lit. a of the Swiss Data Protection Act, personal data includes all information which relates to an identified or identifiable person. With regard to the pictures appearing on Google Street View, the Court held that they contain personal data – given that sometimes faces of persons, which are not sufficiently or not at all anonymised, are visible. Further, since licence plates, and the insides of gardens, balconies, and even houses are also visible, the Court stated that even pictures that do not show people may be qualified as personal data, holding that it is sufficient that the pictures indicate the respective persons.
The Swiss Federal Supreme Court set forth specific requirements that had to be met by Google in order to ensure that Street View complied with Swiss data protection law:
- In principle an adequate anonymisation of images, in which persons and licence plates are recognisable, is required. However, contrary to the Swiss Federal Administrative Court, the Swiss Federal Supreme Court held that – considering the fact that 99% of the images are automatically sufficiently anonymised– it is acceptable that approximately 1% of the images are not automatically anonymised sufficiently, and that persons shown in those pictures are made unrecognisable only upon an explicit demand.
- Google must indicate the possibility of requesting anonymisation in an easily noticeable way, and anonymisations must be undertaken in an efficient, quick, and unbureaucratic way, and without charge.
- The persons pictured do not have to demonstrate a special interest in the anonymisation. In addition to the possibility of requesting anonymisation online, Google Street View must provide a mailing address in case someone wishes to object in writing.
- The possibility to object to one’s appearance in a picture must be published on Google Street View’s website, and also regularly disseminated (every three years) in the media.
- In accordance with the previous instance, in certain sensitive areas (i.e. domestic violence shelters, homes for the aged, prisons, schools, courts, and hospitals) a complete anonymisation is required and the mere anonymisation of faces and licence plates is insufficient. Instead, the anonymisation must be done in such a way that characteristics like skin colour, clothing, technical aids of handicapped persons, etc. are not visible.
- Images of private areas, such as gardens, the insides of houses, etc., which cannot normally be seen by passers-by must not be published on Google Street View at all.
- Even if manual anonymisation is unnecessary, Google is obliged to continuously seek possibilities for complete anonymisation of its pictures and must continually adapt the automatic anonymisation to the latest technology.
- The Swiss Federal Court confirmed that at least one week’s advance notice must be provided, both on the internet and in the local press, as to where Google plans to take pictures (i.e. in which towns or villages). The same applies before any new pictures are placed online.