The concept of monitoring in the Polish dictionary is defined as “constant observation and control of some processes or phenomena” or “constant supervision of a protected object”. The phenomenon of video recording using cameras or video recorders is called: video monitoring, closed-circuit television, video surveillance, television surveillance systems or the English term Closed Circuit TeleVision (CCTV). Video monitoring, also known as closed-circuit television, differs from regular television in that the image from the cameras is transmitted (via cable or radio) and received only in the receiving center, and not in an unlimited number of receivers. Video monitoring is most often present, among others: in facilities such as shopping centers, hypermarkets, private areas, city streets, squares, railway crossings as well as in public buildings such as schools, universities or offices. In Poland, until the entry into force of the Act of May 10, 2018 on the protection of personal data, i.e. May 25, 2018, there were no detailed legal regulations regarding video monitoring. Until the entry into force of the above-mentioned act, the legal basis for recording images (in some cases also sound) was available only to services guarding broadly understood security or public order, such as the Police, City Guard, Border Guard, or the Central Anticorruption Bureau. However, there were no statutory regulations in this regard regarding other state and private entities, including, among others: natural persons. The analysis of court decisions shows that the assessment of the legality of the use of video monitoring should be differentiated depending on whether it is open (there is information about the cameras placed) or whether it is carried out covertly. The issue of covert filming was analyzed in the case law of the ECtHR and concerned the filming of an employee by the employer. The case in which an employee was audiovisually recorded with a hidden video camera, without the employee’s knowledge, was considered by the European Court of Justice in Strasbourg and concluded with the judgment of October 5, 2010, complaint no. 420/07. The justification for this judgment stated that secret filming of an employee at work without his knowledge must be considered a serious interference in the employee’s private life. The Court noted that such interference results in the creation of film documentation which, when further reproduced and used, may constitute a violation of the rights to privacy and the right to image. The Court found that the employer could order monitoring of an employee at work by means of hidden video recording only if there was a prior reasonable suspicion that the employee had committed a crime and such control was proportional to the aim of revealing the perpetrator of the crime. Against the background of the analyzed case, it was established that the inventory carried out in the beverage department where the person recorded on the video camera worked could not reveal the cause of the shortages. It was found that control by superiors or co-workers or open video control did not provide the same prospects for detecting the perpetrator of the theft as covert video monitoring. It should therefore be noted that in the case analyzed by the Tribunal, video monitoring of the employee was introduced only after losses were observed and after disclosing irregularities in settlements, which raised the suspicion of theft by one of the employees. The hidden filming of an employee in these circumstances was found by the Court to be permissible, especially since this measure was limited in space, it did not extend to the employee’s entire workplace in the supermarket or even to the entire drinks department, but only covered the checkout, the cashier and the places immediately surrounding cashier’s work station. The problem of using monitoring itself goes far beyond the regulation of legal acts regarding the administrative and legal aspect of personal data protection and covers a much wider area than the regulations introduced into the Polish legal order on May 25, 2018, regarding issues related to the use of monitoring in the area of employee activities, in schools. in the public space of a commune or poviat and on real estate constituting voivodeship or state property. A violation of the provisions on the protection of personal data made in connection with audiovisual recording can certainly be interpreted as a manifestation of the illegality of the violation of personal rights in the light of Art. 24 CC On the other hand, it should be remembered that fulfilling administrative and legal obligations related to the protection of personal data does not guarantee that monitoring will not constitute an infringement of personal rights other than personal data, such as: the right to privacy, intimacy, privacy, good name, confidentiality of correspondence, right to image. It seems that in the area not covered by the provisions of the Personal Data Protection Act of 2018 and Regulation (EU) 2016/679 of the European Parliament and of the Council, i.e. when the processing of personal data is carried out by a natural person as part of activities relating to purely personal or domestic nature or when it is done for journalistic purposes, for the purposes of academic, artistic or literary expression, the use of video monitoring, in order to be legal, must be justified by the need to protect specific legal rights. The video monitoring used should be transparent, which means that the rules and scope of control carried out in this way must be known. As a rule, persons subject to monitoring should be informed about it in an understandable way, and monitoring should be proportionate, which means that its purpose could not be achieved in a less harmful way. Covert monitoring may be considered admissible only exceptionally when it is the only means of protecting important legal rights that cannot be protected in another less harmful way.
