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Recommendation of the Federal Data Protection and Information Commissioner regarding Google Street View in Switzerland

The Federal Data Protection and Information Commissioner (FDPIC) opened an investigation on whether this service breaches the privacy of persons in Switzerland and on 11 September 2009 it issued a recommendation to Google.

The recommendation is published on the website of the FDPIC (http://www.edoeb.admin.ch/dokumentation/00445/00508/index.html?lang=de; only in German). In essence, the FDPIC found that the processing of personal data by Google violates the principle of proportionality set out in art. 4 para. 2 of the Swiss Data Protection Act because not all of the faces and licence plates are blurred when the images are first placed online and a request for the faces and license plates to be blurred or for the removal of the pictures after the fact is not sufficient in this respect. In addition, the FDPIC points out that blurring the faces and licence plates does not under all circumstances make it impossible for the person concerned to be recognized and that the potential identification of a person connected to a “sensitive sector” (hospitals, courts, prisons, red light districts, etc.) makes the breach of the personality rights of the person concerned more severe. The FDPIC also held that Google's use of a camera from a height of approximately 2.75 meters above the ground sometimes resulted in photographs of the inside of private courtyards which are screened from view by an ordinary passerby and that some of the pictures have also been taken on private streets. The FDPIC also considers these situations to constitute breaches of the personality rights of the persons concerned.

The FDPIC opined that no justifications for the aforementioned breaches exist and therefore Google's Street View service constitutes an unlawful breach of the personality rights of the persons concerned and issued the following recommendation to Google:

1. Google Inc. shall refrain until further notice from placing new pictures taken in Switzerland on Street View online;
2. Google Inc. shall provide a better system for rendering faces and licence plates completely unrecognizable in pictures that are already online;
3. Google Inc. shall ensure the anonymity of persons connected to “sensitive sectors”;
4. Google Inc. shall ensure that pictures which show the inside of private, enclosed courtyards which cannot be seen by an ordinary passerby are either not taken at all or removed. Google shall in the future use the camera in a way that no photographs of protected private areas are possible;
5. Pictures which have been made from private streets have to be removed unless consent has been given;
6. Google Inc. shall give notice at least one week in advance of the locations where it will take pictures in the following week;
7. Google Inc. shall give notice one week in advance of the locations that will be placed online.

The FDPIC set a time limit of 30 days to Google Inc. to notify the FDPIC whether it accepts or rejects the recommendation. If Google Inc. rejects the recommendation or if it is not followed, the FDPIC may refer the matter to the Federal Administrative Court for a decision. The decision of the Federal Administrative Court could be appealed by the FDPIC or Google Inc. to the Federal Supreme Court for final decision.