Ursula Widmer

On 8th June 2012 the Swiss Federal Supreme Court published its long and eagerly awaited decision on Google Street View. The court partially upheld the complaint by Google on one important point. The Federal Supreme Court does not consider it necessary for Google to take further steps in addition to the automated anonymization of faces and vehicle number plates to ensure complete anonymization for all images before uploading. This was precisely what the Federal Data Protection and Information Commissioner (FDPIC) had demanded of Google because the software for automated anonymization is not to 100% reliable. The Federal Administrative Court was likewise of this opinion in its decision of April 2011. However, the Federal Supreme Court now considers it reasonable that the automated anonymization does not completely cover all persons and vehicle number plates, provided that the error quota of inadequately anonymized images is not more than approximately 1 per cent.

On other important points, however, the Federal Supreme Court has defined stringent requirements for Google Street View.

When photographing sensitive establishments, such as schools, hospitals, retirement homes, women’s refuges, courts and prisons, complete anonymization must be carried out before the images are uploaded. In this case merely pixelating faces and car number plates is not suf- ficient. It must also not be possible to identify persons by
features such as skin colour, clothing, walking frames or other aids for disabled persons. Since automated anony- mization is not sufficient for this purpose, such photo- graphs must be anonymized by Google manually.

Where automated anonymization is sufficient as a pre- ventive protection measure, Google must provide those affected with the facility, free of charge, for inadequately anonymized images to be reported subsequently either via the internet or by post. Such subsequent reports must be dealt with by Google quickly and efficiently, and the inadequate anonymization must be rectified by manual processing. Google must provide information about this reporting facility both on its website and in the media.

Except with the consent of those concerned, photographs of private areas e.g. enclosed gardens and yards that are normally concealed from view of passers-by, are prohib- ited. Google is therefore not allowed, without the consent of those concerned, to take photographs from a camera height of more than 2 metres, as was previously the case. Google has a transitional period of 3 years to replace images which contravene this requirement.

Google is further obliged to provide information in re- gional and local media about when the cameras will be passing through, and when the data is about to be upload- ed. Merely providing information on the Google website is not sufficient, according to the Federal Supreme Court. The announcement must be made in each case at least one week before the photography or upload takes place.

On a further essential point, the decision has general significance for data protection on the internet. This is because Google had argued that the photographs had been uploaded to Google Street View from the USA and there- fore are not subject to the jurisdiction of the Swiss au- thorities and courts. The Federal Supreme Court coun- tered this by pointing out that the photographs would be taken here in Switzerland and would also be accessible here. Therefore, in the Federal Supreme Court’s opinion, the reference to Switzerland is sufficient for Swiss data protection law to be applicable.

On this point the decision is also of major importance for other international internet providers. If their activity makes sufficiently strong reference to Switzerland, Swiss data protection law does not cease to be applicable just because the data is stored on servers abroad. The applica- bility of Swiss data protection law to such firms is to be welcomed by all Swiss persons affected.