On 28th June 2019, the Outer House of the Court of Session in Scotland held that the police service of Scotland was entitled to use WhatsApp messages discovered on an officer’s smartphone during the course of a criminal investigation (which were not used in that investigation) as a legal basis for bringing separate misconduct proceedings against a group of police officers who were members of the WhatsApp chat group.
This is one of the first decisions in England and Wales or Scotland which deals with the issue of how WhatsApp messages can be used in an employment context.
In 2016, a police officer carrying out an investigation into sexual offences within the police service of Scotland discovered a series of messages sent via WhatsApp on a phone belonging to a suspect who was a police officer. The messages were found on two group chats consisting of 15 and 17 members respectively. The messages were described as containing “sexist and degrading, racist, anti-Semitic, homophobic” content and information which was “mocking of disability” and which had a “flagrant disregard for police procedures by posting crime scene photos of current investigations”.
The police officers concerned sought to argue before the Outer House of the Court of Session that use of their WhatsApp messages in relation to non-criminal misconduct proceedings was unlawful and in breach of their right to privacy under Article 8 of the European Convention on Human Rights.
The Court looked at a wide range of legal issues, a number which were exclusively related to privacy law issues in Scotland. The important question which the Court attempted to determine however was whether the police officers had a reasonable expectation of privacy in relation to the messages. The Courts concluded that as WhatsApp messaging takes place in a private context, individuals are able to argue that they have a reasonable expectation of privacy in accordance with their rights under Article 8 of the European Convention of Human Rights. The Court held that despite the subject matter of the messages being “abhorrent” in nature, this does not change anything, given that the content of behaviour is not usually a relevant consideration when deciding whether a reasonable expectation of privacy arises. The Court compared the content of the messages to individuals having a chat at home with eight friends where there would be a reasonable expectation of privacy.
The difference in this case however was that unlike members of the general public, the police officers were subject to professional standards which were also applied to their private life, aimed at maintaining public confidence in the police which meant that their reasonable expectation of privacy was limited.
The Court went on to find that there was a legal basis to justify the passing of information such as this between regulatory bodies where it was in the public interest and in order to protect the public. This therefore justified the collateral disclosure of information from the criminal investigation to the internal misconduct investigation.
One of the authorities looked at by the Court noted the following comments made by the Judge:
“Even if there is no request from a regulatory body, it seems to me that if the police come into possession of confidential information which, in their reasonable view, in the interests of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body for its consideration”.
As indicated above, this is one of the first decisions in England, Wales or Scotland which considers how the content of WhatsApp messages can be used in a work environment. For the average employee who does not work within a regulated environment, the content of WhatsApp messages will remain private, despite however unsavoury their content is. The position is different however for employees who are subject to professional standards or who work in regulated industries, such as solicitors, doctors and those working within the financial services and healthcare sectors.