Covert video surveillance – it’s not always an unreasonable means to an end
A recent case in point is the European Court of Human Rights (ECHR) decision in Lopez Ribalda and Others v Spain ([2018] 1 WLUK 38), which concerns a challenge on the ground of breach of the right to a private life (Article 8 of the European Convention on Human Rights) to the use of covert video surveillance of supermarket employees who were suspected of stealing. The supermarket installed visible CCTV cameras at the entrances and exits, and hidden cameras directed towards the checkout counters. Staff were informed of the suspicion of theft and of the installation of the visible cameras, but not of those that were hidden. The hidden cameras recorded a number of employees engaged in the theft of goods, who were then dismissed. Though the case relates to the employer-employee relationship, the principles nevertheless apply to the institution-student relationship.
“Private life” is a broad term not amenable to exhaustive definition. It covers both the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person’s physical or social identity. It is not confined to an inner circle, but extends to the possibility of establishing and developing relationships with others and with the outside world. It can also include professional activities (e.g. the right to practise a profession) and to activities taking place in a public context. The right to a private life is not absolute and can be interfered with if it is for the purposes of pursuing a legitimate aim, such as protecting the rights of others (including an institution’s own rights), the interference is provided for by law (i.e. predicable and accessible), is necessary in a democratic society and is proportionate.
Video recording in a public place will usually engage the right to a private life only if any systematic or permanent record of an identifiable individual is kept. Videoing staff in the workplace with a view to using the footage in disciplinary proceedings would therefore fall within the ambit of Article 8.
As with all human rights cases, a fair balance has to be struck between competing interests. In this case they were on the one hand, the employees’ right to respect for their private life and on the other, the protection of the employer’s property and the smooth operation of its company, particularly by exercising its disciplinary authority. The ECHR set out the following factors that should be taken into account by a court when assessing where the balance lies and whether video-surveillance measures in the workplace were proportionate:
- whether the employees had been notified of the possibility of video-surveillance measures being adopted;
- the extent of the monitoring and the degree of intrusion into privacy. The level of privacy in the area being monitored, the limitations in time and space, and the number of people who have access to the results will be relevant;
- whether the employer has provided legitimate reasons to justify monitoring. The more intrusive the monitoring, the weightier the justification will need to be;
- whether a less intrusive alternative was available to the employer;
- the consequences of the monitoring for the employee, in particular whether the results were used for the stated aim of the monitoring;
- whether the employee has been provided with appropriate safeguards, especially where the monitoring is intrusive e.g. the provision of information to employees or to staff representatives or the possibility of making a complaint. The data-protection regime, if complied with, would also offer safeguards.
The EHCR concluded that in the particular set of circumstances, the reasonable expectation of privacy was limited. Expectations would be high in places that are private in nature (e.g. toilets), where heightened protection is justified. The expectation is also high in closed working areas, such as offices. It is manifestly lower in places that are visible or accessible to colleagues or, as in this case, to the general public, who were making payment for goods purchased. While the employer had not determined the time limit of the surveillance in advance, it lasted for 10 days and ceased once the employees had been identified. This was not regarded as excessive. Only the supermarket manager, the company’s lawyer and the union representative had access to the footage before the employees were informed and the intrusion into the employees’ privacy did not therefore “attain a high degree of seriousness”.
The consequences for the employees were significant in that they were dismissed. The employer did not, however, use the footage for any purposes other than to trace those responsible for the theft of goods and to take disciplinary action against them.
The ECHR acknowledged the general principle of the right of individuals to be informed before their personal data is collected, a principle also enshrined in data protection legislation. Transparency and fairness are fundamental to privacy, particularly in employment relationships where employers have significant power over their employees and the potential to abuse those powers. In this case, however, providing information to employees in advance that surveillance would be undertaken would have defeated its legitimate purposes.
Overall, the ECHR concluded that given the degree of intrusion into the employees’ privacy, the legitimate aim being pursued by the employer and the absence of any less intrusive means of achieving the employers’ aim, the video surveillance, including the lack of prior information being provided to the employees, was justified and proportionate.
The consistent lesson from such cases is that respecting human rights is not inimical to detecting and dealing with serious wrongdoing by students and staff. Respecting human rights is, however, a necessary check and balance on the means deployed and hence on the ability of institutions to exercise the power vested in them.
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