By: Oana Bădărău and Denisa Hreniuc Date: 29 March 2016
(original version published in Arena Constructiilor no. 1/2016)
From an economic and financial perspective, the construction site is a common “ground” for the interests of the developer, of the contractor and of their employees. But what happens when the developer or the contractor considers taking action to increase security on the construction site, in order to benefit from more effective supervision of the works and even in view of increasing productivity, efficiency and correctness thereof? What do the developer and the contractor have to be aware of when deciding to install surveillance cameras on the site?
Deciding to install video surveillance equipment on the site creates a situation that may segregate the developer’s and the contractor’s interests from those of their employees. Installing surveillance cameras, despite being highly beneficial for the developer or the contractor, may hinder the workers’ private life.
In 2012, a decision of the president of the National Supervisory Authority for Personal Data Processing (hereinafter the Authority) clarified nationwide that the collection, storage, use or processing of images, by video surveillance mechanisms which allow a direct or indirect identification of individuals, represent personal data processing operations.
Consequently, the installation and use of surveillance cameras on site requires complying with the relevant laws on the processing and circulation of personal data. To find a compromise between the developer’s and the contractor’s interest in ensuring security, efficiency and correctness on the site and the employee’s need for protecting his/her personal life, a material requirement was imposed: the video surveillance measure must be in line with its intended purpose.
What purpose justifies the installation of a video surveillance system?
The law does not expressly provide the right to install a video surveillance system (just) for monitoring the performance of contractual obligations. However, video surveillance is allowed for legitimate interests (subject to observing the fundamental rights and freedoms or the interests of the relevant individuals). We believe that such measure would be justified, if intended for: monitoring the status of the construction works, discovery and immediate remediation of inconsistencies occurred during the progress of the works, preventing accidents etc. Undoubtedly, ensuring the safety and protection of the workers, of the assets and goods located on site and preventing and fighting crime justify the installation of surveillance cameras.
Choosing and defining the underlying purpose of video surveillance should not be neglected, since the data thus collected may only be used for the originally established purpose.
Who may operate the surveillance system?
According to the applicable legal provisions, the holder of the electronic file – the person who installs and operates the surveillance system – is a personal data operator. Consequently, in the developer’s case, setting a contractual obligation to install and operate surveillance cameras for the contractor or a third party outsources part of the personal data protection obligations. On the other hand, the immediate consequence is that the developer cannot review the recordings without specific authorization from the contractor or from the third party, as the case may be, without being instructed in relation to the personal data protection laws and without undertaking to apply the proper technical and organizational measures to protect personal data against any form of illegal processing.
Is it necessary to have the workers’ consent in order to be able to monitor them?
As a rule, any processing of images of employees by means of video surveillance requires their explicit and unambiguous consent. There are a series of exceptions to this rule (e.g., when the surveillance takes place for achieving a legitimate interest of the operator or of a third party to whom the data is disclosed, subject to such interest not harming the fundamental rights and freedoms or the interest of the relevant person, or when the processing is required in order to comply with a legal obligation of the operator).
The broad wording of the law allows the interpretation that it is not necessary to have the explicit and unambiguous consent of each employee; however, in order to avoid potential consequences of the public authorities having a different interpretation, it is advisable to obtain the prior written consent of the employees. Note be made that such consent must be an informed one; in other words, the relevant persons must be aware of the purpose of the surveillance, of the persons to whom the data would be disclosed, of their rights as individuals under surveillance, as well as of the consequences of their refusal.
Where may cameras be placed?
If the decision to install surveillance cameras was taken, the operator must notify the authority before making any recording of the activity on the site. Within five days after the notice, the system may be activated.
The surveillance cameras must be installed in visible places, being expressly prohibited to install them in hidden locations. Obviously, there are place where surveillance cameras may not be installed: mostly areas associated with the individual’s intimacy (locker rooms, shower rooms or toilets and such others) or the offices where the employees conduct their activity.
The existence of the surveillance system must be signaled by signage containing a representative image with sufficient visibility which must be positioned at a reasonable distance from the place where the surveillance cameras are located. In the areas surveilled, the operator must display a poster visible by any person, containing information concerning: (i) the existence of the surveillance system and the purpose of the data processing operation, (ii) the identity of the operator and of the persons to whom the data is communicated, (iii) the fact that records are being kept, (iv) the rights of the targeted persons and how such rights may be exercised.
How long may the data be stored?
The data obtained from the recordings cannot be stored for more than 30 days, except for well- grounded cases or situations expressly regulated by the law. This time restriction ensures the observance of the right of the respective person to be forgotten.
What are the consequences of breaching the relevant provisions on personal data processing and circulation?
Observing the rules on personal data protection is essential when using surveillance cameras, as the violation of these provisions may represent a criminal offence. The omission to notify the Authority or notifying the Authority in bad-faith, the illegal processing of personal data, the breach of the obligation to maintain confidentiality of the personal data or to apply security measures are civil offences that may be sanctioned with fines ranging between RON 500 and RON 50,000 (the limits of the fines vary depending on the severity of the offence).
The installation of surveillance cameras on a construction site is an action which, despite involving certain additional costs, may be highly beneficial for both the developer and the contractor.
Nevertheless, it is advisable to take the decision of installing a surveillance system only after having also considered the legal obligations regarding personal data protection.