Safe riding in road traffic is one of the topics that will shape the development of ebikes in the coming years. Rider assistance systems and intelligent traffic control are two of the keywords in this context. Dashcam is a third. In cars, traffic monitoring with the help of a camera is quite common. Now, little by little, special solutions for bicycles are also coming onto the market. What can such systems do? What are such systems allowed to do? Elektrofahrrad24 asked Claudia Schulze-Domnick, a lawyer, these and other questions. She works as an expert for the Hamburg-based initiative Bikeright, which campaigns for the rights of cyclists throughout Germany – not only, but especially in legal cases.
Ms Schulze-Domnick, in general terms, what is the purpose of a dashcam on a bicycle?
After an accident, a dashcam can be used to prove the actual course of the accident and the fault of another road user to that person and their motor vehicle liability insurance. If an opposing insurance company refuses compensation or similar, the recording can also serve as evidence in court, according to the German Federal Court of Justice (Bundesgerichtshof – BGH). Even if it is too long and therefore actually violating data protection regulations (1).
Expert Claudia Schulze-Domnick also acts for Bikeright.
What generally applies to the use of such a security system?
In Germany for data protection reasons, dashcams that film in public spaces may only film briefly and on an occasion-related basis. This also includes ordinary cameras. Recordings of people may not be posted on the internet without their prior consent or without being made unrecognisable. Otherwise, very high fines may be imposed.
Most people still do not have such a camera on their bicycle. Do they really need them?
Most cyclists are on their own. If something happens, they have no witness to the accident. Afterwards, it is often very difficult to prove the fault or contributory negligence of other people. There are, of course, some simplifications of proof, such as the prima facie evidence against the car in the case of a bicycle accident with a suddenly opening vehicle door. Unfortunately, motor vehicle liability insurers in particular often do not feel bound by these rules of the burden of proof and a clarification in court is lengthy and expensive. If the recording of a dashcam proves that there was a sufficient distance to the parked car, this is an advantage. In my experience, insurance companies look at the recordings and then also settle if they are clear.
Let’s go into detail. Various dashcams only record shorter sequences, for example 20 seconds. Does the duration of the recording have any legal relevance?
It’s mainly a matter of data protection. With solutions that only record when cyclists ride within the safety distance or an accident occurs, the duration is irrelevant. What is important for cyclists is that the recorded sequence shows misconduct on the part of the other road user. Such a short recording is likely to be accepted as evidence by insurance companies and courts.
Does the recording become invalid if an illegal overtaking manoeuvre can be seen in which the cyclist is also behaving illegally?
No. However, the recording cannot be used to prove the clear fault of the other road user. In this case, we are talking more about a joint liability defence. Depending on the extent of this objection, the claim for damages may be correspondingly lower.
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- Dashcam from Dashbike
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- Dashcam Fly6 from Cycliq
What technical requirements must a legally compliant solution fulfil?
The framework for this is set by the Federal Data Protection Act (BDSG). This states that a permanent recording in road traffic without a concrete reason, such as an accident, violates applicable data protection regulations. In the event of an accident, road users have a legitimate interest in preserving evidence. Therefore, the recording of a short sequence around the accident or the traffic violation of the other road user is permissible. This can be technically implemented, for example, by overwriting the recording at regular intervals and permanently storing only a short sequence around the accident, which only the person concerned can retrieve.
When assessing whether an image recording via a dashcam or a similar device is compatible with applicable law, numerous legal framework conditions play a role. What are these exactly?
The use of dashcams must not violate European or federal data protection standards. Regarding to Germany, the Federal Data Protection Act (2) is particularly relevant. Whether interests worthy of data protection are affected depends on the individual case. For example, a camera in continuous operation on public roads violates the general personal right of an uninvolved road user. Cyclists cannot claim a legitimate interest in such video recording (3).
And what is the basis for the right to record?
This is derived from the principle of the rule of law. From this derives the interest in the effective administration of civil justice, such as the interest in the enforcement of civil claims for damages and the right to be heard. This also includes the right to preserve evidence, which is also enshrined in section 142 of the Criminal Code, a criminal offence in cases of hit-and-run accidents. In road traffic, it is sometimes difficult to prove how the accident happened. There are often no verifiable facts and witness statements for an expert opinion. A short recording that reflects the actual course of the accident is therefore a solution that complies with the law.
Thank you very much for the interview, Ms Schulze-Domnick.
(1) BGH, 15 May 2018, Ref. VI, ZR 233/17
(2) Section 4 BDSG-new, Section 24 BDSG-new.
(3) Section 4 (1) BDSG-new
If you are looking for legal assistance after a bicycle accident or similar, you can contact the law firm of Claudia Schulze-Domnick, for example:
CSD-Kanzlei
Claudia Schulze-Domnick
Katharinenstraße 11
20457 Hamburg
Mail: kontakt@csd-kanzlei.de
Web: www.csd-kanzlei.de
You can also find support at Bikeright at any time.
bikeright GmbH
Katharinenstrasse 11
20457 Hamburg
Mail: kontakt@bikeright.de
Web: https://bikeright.de
Pictures: CSD- Kanzlei; Cycliq Products Pty. Ltd.; Dashfactory GmbH
