Secret video surveillance of employees approved by the Court of Human Rights

A new plenary judgment from the European Court of Human Rights (ECHR) in Strasbourg opens for secret video recording of employees. The 17 October 2019 judgment concerns five employees in a Spanish supermarket whose dismissals were caused by thefts from the employer. The video recordings were decisive evidence.

The case came before the court because the employees disputed the basis for the terminations. One main argument was that their right to privacy under the European Convention on Human Rights (ECHR) had been violated. The provision reads:

• Art 8. The right to respect for private and family life
• 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
• 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The employees also demanded that the recordings not be used as evidence, but they were not heard.

The ECHR was incorporated into Norwegian law through the Human Rights Act (1999). After proceedings in the Spanish Labour Court, District Court and Court of Appeal as well as the ECHR's Chamber of the Court, the question ended in the Grand Chamber (plenary). By fourteen to three votes, the Court held that article 8 was not violated in this case.

The Court stated that the obvious main rule is that employees should be informed prior to any recording taking place. The employees were given information about visible cameras, but not the hidden ones. The ECHR stated that justification for accepting covert video recordings needs to be particularly well founded.

The Court stressed that:

• The employer had reasonable grounds to suspect serious offences, i.e. thefts, based on discrepancies between sales figures and stock levels.
• The extent of the employees' thefts was significant, indicating that several employees were involved.
• It would probably have been challenging to uncover the thefts in any other appropriate way.
• If the employer had notified the employees, the purpose of the recordings would not have been achieved.
• The recordings were done for a limited time period - 10 days - and stopped when the purpose was achieved.
• Few people saw the recordings - only the supermarket manager, legal counsel and the trade union representative.
• The recording took place in a public area - a store - so that expectations of privacy in general would be minimal (as opposed to e.g. a locker room or a closed office). The privacy intervention was thus limited.
• The cameras were aimed at the tills and not generally around the premises - i.e. a targeted measure.

The list above provides a useful list of points for employers who are considering surveillance - with cameras or by other means - and employees who are considering attacking such surveillance.

An interesting feature of the judgment is that it highlights the close relationship between human rights and privacy law. In many ways, one can say that the right to privacy emerges from article 8 of the ECHR (and the equivalent in the UN's Universal Declaration of Human Rights). In this regard, ECHR discussed the Spanish Personal Data Act as one of several protection mechanisms for the rights granted in article 8 of the ECHR.

The judgment is also important to labour law.

In Norwegian law, camera surveillance is primarily regulated by:

• the Personal Data Act (and GDPR)
• the Working Environment Act (chapter 9)
• regulation on camera surveillance in the workplace

As the Grand Chamber of the ECHR also assumes, it follows from these rules that the main requirement for surveillance is advance information and "justifiable basis" and that the processing should not be "disproportionately" incriminatory. In addition, the Working Environment Act calls for discussion of the measures with the employee representatives, where purpose, consequences and duration are identified.

The regulation requires that information of surveillance is given. The Personal Data Act has special rules regarding non-genuine camera equipment, in addition the general requirements for transparency, basis for processing, proportionality, etc.

Interestingly, the Grand Chamber's assessments run relatively parallel with the Norwegian Supreme Court's assessments in the so-called "Garbage truck" judgment (Rt. 2013 p. 143). In this case, the Supreme Court rejected claims for relief from a disloyal employee, even though the information collected was used for a purpose other than the one it was collected for. The reasoning was that the private life intervention was minimal (GPS positions) and the suspicion "specific and well-founded", such as in the Spanish supermarket case.

The lesson is that you should perform a thorough evaluation prior to initiating covert surveillance and that the method of implementation becomes decisive for its legality.

You may read the judgment here.

Feel free to contact us if you have any questions.

Kristian Foss (kf@bull.no)