Article 8 of the European Convention on Human Rights (“ECHR”) states that everyone has the right to respect for their private & family life. Public authorities can only interfere with this right where it is necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights & freedoms of others.
In Spain, individuals are entitled to be informed in advance of the existence of a personal data file or that data will be processed and the purpose and recipients of that information. In terms of video surveillance there must be a distinctive sign indicating the areas under surveillance and a written document confirming other the details i.e. the purpose of the data file, recipients etc.
In Lopez Ribalda v Spain the Grand Chamber of the European Court of Human Rights (“ECtHR”) had to decide if a Spanish employer’s decision to install covert video cameras to monitor suspected theft by a number of supermarket cashiers infringed their Article 8 privacy rights.
Facts of the case
Ms Ribalda and 4 others worked as cashiers in a supermarket chain. In June 2009 the manager identified some significant discrepancies between stock levels and what was supposedly held in store. In some months the difference was as much as 20,000 euros. The supermarket launched an investigation and as part of that they installed surveillance cameras. Some of the cameras were directed to capture any potential customer thefts and those cameras were visible in the store. The other cameras were aimed at possible employee thefts and those cameras were concealed. Employees were not informed of the concealed cameras.
Shortly after the cameras were installed they caught Mr Ribalda and her colleagues stealing items and helping colleagues and customers steal items. Some of the footage showed them scanning items from customers’ baskets and then cancelling the purchases on the till. They all admitted their involvement in the thefts and were dismissed. They subsequently issued claims for unfair dismissal. In relation to the video surveillance, the Spanish courts accepted that it had been lawfully obtained even though the employees had not been notified of the existence of the cameras. The courts also felt that the use of the covert footage was justified as the supermarket had reasonable suspicions of theft.
The employees appealed to the ECtHR on a number of grounds including the fact they felt that use of the surveillance footage in the unfair dismissal proceedings had breached their right to privacy.
Decision of the first chamber of the ECtHR
The first chamber of the ECtHR upheld the employees’ Article 8 claims on the basis the Spanish courts had failed to strike a fair balance between the rights involved – the employees’ right to privacy versus their employers’ interest in the protection of its property and the public interest in the proper administration of justice. They were particularly critical of the fact the surveillance had filmed all staff working on the cash register over a period of weeks without any time limit.
Decision of the Grand Chamber of the ECtHR
The Grand Chamber overturned the original decision and confirmed that the Spanish courts had struck a fair balance between the competing rights. They acknowledged that the employees had not been informed in advance of the existence of the cameras and, whilst that was relevant, it was not determinative of whether the intrusion on their rights to privacy was proportionate. The Chamber took in to consideration the following:
- the individuals were working on a shop floor and therefore could only have a limited expectation of privacy;
- the surveillance only took place for a short time period (10 days);
- only a limited number of people were able to view the footage; and
- if the employer had told them about the cameras it could have jeopardised their attempts to catch the thieves.
This decision is likely to be welcome news for employers as it adopts a common sense approach to the use of covert surveillance. It does not of course give employers the unfettered right to start installing hidden cameras in the workplace. As the Information Commissioner’s Office guidance on covert monitoring of employees makes clear, it will be rare for covert video surveillance to be justified and as such it should only be done in exceptional circumstances for example as part of a specific investigation into suspected criminal activity. In reality it is likely to only be justified where openness is likely to prejudice the prevention or detection of crime or the apprehension of offenders.