European Court Holds Secret Surveillance Did Not Violate Employees’ Privacy
Overturning a previous chamber decision, the Grand Chamber of the European Court of Human Rights (ECtHR) held that employees’ right to privacy was not violated when a Spanish supermarket used visible and secret cameras to record public areas of the store when it suspected significant theft by employees. See ECtHR, López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, Judgment of 17 October 2019. Despite domestic law and international standards requiring that individuals be notified of video surveillance, the Grand Chamber held that the State had not exceeded its “margin of appreciation” under the European Convention on Human Rights (European Convention) when domestic courts rejected the applicants’ constitutional claims and upheld their dismissal, given that there was a “weighty justification” for the use of covert surveillance and the applicants had not used domestic legal safeguards to challenge the surveillance under data privacy laws. See id. at paras. 131, 134-37. This judgment expands the European Court’s doctrine on the legitimate use of surveillance in the workplace. See ECtHR, Factsheet – Surveillance at Workplace (Oct. 2019).
Facts & Procedural History
The five applicants were working as cashiers or sales assistants at a Spanish supermarket chain when the supermarket manager noticed missing stock. See ECtHR, López Ribalda and Others v. Spain [GC], Judgment of 17 October 2019, paras. 10-11. The manager began an investigation and installed visible and hidden cameras in the supermarket without notifying the employees of the hidden cameras. See id. at paras. 11-12. The cameras recorded activity at checkout counters, exits, and entrances; the footage showed employees taking goods without paying for them, or allowing other people to do so. See id. at paras. 12, 15. As a result, management fired 14 employees, including the five applicants. See id.
All of the applicants submitted a complaint before the Spanish Employment Tribunal, alleging unfair dismissal and violations of their right to privacy, and asking that the recordings not be admitted into evidence. See id. paras. 19-25. The Employment Tribunal held that there had not been a violation of privacy, that the recordings could be admitted into evidence, and that the dismissal had been valid. See id. at para. 25. The applicants appealed to the Spanish High Court of Justice, which outlined a proportionality test, and concluded that the surveillance had been justified and necessary. See id. at para. 38.
The applicants submitted a complaint to the European Court in December 2012. See id. at para. 1. In January 2018, a ECtHR chamber held that there had been a violation of Article 8 (right to privacy) because the supermarket had not notified the employees of the video surveillance, but did not find a violation of Article 6 (right to fair trial) of the European Convention. See id. at para. 4. The Spanish government requested that the case be referred to the Grand Chamber, and the Grand Chamber Panel accepted the request in May 2018. See id. at para. 5.
Grand Chamber’s Analysis
Right to Privacy
With respect to the right to privacy, the ECtHR stated that a “fair balance” must be struck “between the competing private and public interests, subject…to the margin of appreciation enjoyed by the State,” in line with its analysis in similar cases. See id. at para. 111. In the context of employees in the workplace, the Grand Chamber reiterated the principles set out in Bărbulescu v. Romania, in which the Court analyzed both the employer’s interest in protecting its business and employees’ right to privacy. See id. at para. 115. The Bărbulescu principles require that the domestic court consider: (1) whether the affected employees were informed of the surveillance; (2) the extent of the employer’s monitoring and intrusion of privacy; (3) the reasons justifying the measures adopted; (4) the possibility of establishing a less-intrusive monitoring system; (5) the outcome of the surveillance, including the type of data obtained and how it was used by the employer; and, (6) the safeguards available to employees with respect to the surveillance, including available options to make a complaint. See id. at para. 116.
The European Court noted that the domestic courts accurately evaluated the extent of the employer’s monitoring practices and the intrusion into the employees’ privacy, concluding that “the monitoring did not cover the whole shop but targeted the areas around the tills, where thefts were likely to have been committed.” See id. at para. 124. In particular, the Court distinguished between the levels of privacy that employees could reasonably expect, clarifying that the “expectation is very high in places which are private by nature, such as toilets or cloakrooms, where heightened protection, or even a complete ban on video-surveillance, is justified…[but] is manifestly lower in places that are visible or accessible to colleagues or, as in the present case, to the general public.” See id. at paras. 124-25. Moreover, the Court considered that the intrusion of privacy “did not attain a high degree of seriousness” because the surveillance only lasted 10 days and only a very limited number of people had access to the video. See id. at para. 126.
While the Court found that the outcome of the surveillance was significant, resulting in the dismissal of the employees, the Court noted that the video was only used to find out who was committing the thefts and to take appropriate action against those responsible. See id. at paras. 127-28. These measures, the Court found, were necessary to “fulfill the legitimate aim pursued,” which was to identify who was responsible for the supermarket’s losses. See id. Additionally, the Court stated that the domestic legal framework protected employees’ privacy in the type of situation outlined in this case, providing a number of adequate safeguards related to video-surveillance and personal data collection. See id. at paras. 119-20, 129.
The European Court concluded that the domestic courts “carried out a detailed balancing exercise” between the applicants’ right to privacy with the employer’s interest in running its business efficiently, and “that the legitimate aim pursued by the employer could not be attained by measures that were less intrusive for the applicants’ rights.” See id. at paras. 128, 132. The Court considered that the domestic courts were correct in finding that the video surveillance was justified given the employer’s “reasonable suspicion” that employees were stealing from the supermarket. See id. at paras. 123, 134.
Prior Notification of Surveillance
Specifically, with respect to whether employees were notified of the video surveillance, the Court acknowledged that it is “necessary to inform the individuals concerned, clearly and prior to implementation, of the existence and conditions of such data collection, even if only in a general manner.” See id. at paras. 131, 133.
However, the Grand Chamber held that the employer is not required to notify an employee of video surveillance when it is acting to protect a “significant” interest. See id. at para. 133. In this case, Grand Chamber found that the manager’s “reasonable suspicion of serious misconduct” combined with the “extent of the losses,” as well as the fact that there were multiple employees involved, were a “weighty justification” for not notifying employees of the surveillance. See id. at para. 134.
Because this case involved the State’s positive obligations to regulate or ensure access to redress for a private company’s actions (and did not involve government surveillance), the Grand Chamber considered whether the State had adequately protected the applicants’ rights. The Court stated that the applicants had other legal remedies available under domestic law, in particular before the Data Protection Agency, to bring a complaint related to the supermarket’s failure to provide prior notification of the surveillance, but did not do so. See id. at para. 135. As a result, the domestic legal proceedings had focused on whether the surveillance met the Spanish Constitutional standards, and not the more specific requirements of the Personal Data Protection Act. Thus, given the domestic legal safeguards and the domestic courts’ analysis of the surveillance, the ECtHR found that the State had acted within its margin of appreciation and did not find a violation of Article 8. See id. at para. 137.
Right to Fair Trial
The Grand Chamber also examined whether the domestic courts’ use of the video recordings as evidence to approve of the employees’ dismissal undermined the fairness of the proceedings. See id. at para. 150. While the applicants argued that the video surveillance should have been excluded because it was obtained in a manner that violated their right to privacy, the ECtHR considered the fact that domestic courts and the ECtHR itself had not found a violation of the right to privacy. See id. at para. 155. The Court held that the use of the video evidence had not undermined the fairness of the proceedings because the applicants had the opportunity to challenge the quality and accuracy of the recordings, and the recordings were not the sole evidence on which the domestic courts based their findings. See id. at 155-57. The Grand Chamber unanimously held that there had not been a violation of Article 6 (right to fair trial) of the European Convention. See id. at para. 161.
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