Employee Privacy, Surveillance and the European Court of Human Rights

Employee Computer Files

The European Court of Human Rights (ECtHR) has ruled that an employer may ‘freely consult’ an employee’s computer file that is not private, so long as the company’s IT charter makes a provision to do so. In Libert v France (Application No 588/13), an employee of SNCF (France’s national railway company) was dismissed after pornographic images and films, and forged ‘address change’ certificates, were discovered on his work computer.

The Chamber concluded that SNCF had pursued a legitimate interest in examining his computer files, to ensure employees were complying with contractual obligations and regulations in using their facilities. Files created by employees using computers provided by their employers were presumed to be professional files, unless identified as ‘personal’. His files had been labeled ‘personal data’ but given that the company Charter specified that the word ‘private’ should be used, it could not be identified as such.

The case was distinguished from that of Barbulescu v Romania [GC], no. 61496/08, on the basis that this case involved a public sector employer, not a private sector employer. As such, this involved positive obligations, not negative obligations. This was a Chamber judgment.

Video Surveillance at Work

In Lopez Ribalda and Others v Spain (Applications nos. 1874/13 and 8567/13) the ECtHR considered a case involving covert video surveillance of employees. The applicants were cashiers in a family-owned supermarket chain in Spain. The employer noticed some irregularities in stock levels and wanted to investigate whether the losses were due to customer theft. It installed surveillance cameras, both visible and hidden, pointing towards the entrances and exits of the supermarkets. The hidden cameras were installed to record possible employee thefts and were set to zoom in on the covered areas behind the cash desks. The company informed workers of the installation of the visible cameras only.

Footage from the hidden cameras revealed the applicants helping co-workers and customers steal items, and stealing themselves. They were dismissed. Their appeals against dismissal were unsuccessful and they applied to the ECtHR on the basis that the recording, and use of the surveillance data, breached their right to privacy under Article 8 ECHR. In particular, that the surveillance had been undertaken without prior notice, it had not been limited and was permanent in nature, as it monitored all staff during working hours.

The ECtHR noted that covert video surveillance of an employee is a considerable intrusion given that it is a reproducible documentation of a person’s conduct, which the employee cannot evade. Artcle 8(1) is therefore clearly engaged. The personal data was also stored, processed, and examined by others before the employee was informed of its existence. Unlike in the case of Kopke v Germany (Application no. 420/07), the covert video surveillance did not follow a prior substantiated suspicion against the applicants. It was also aimed at all staff working on cash registers over a period of weeks, without any time limit, and during all working hours.

For these reasons the Court concluded that the measures adopted were not proportionate to the legitimate aim of protecting the employer’s interests. To safeguard the employee’s interests, it observed that the employer could have informed the applicants, in a general manner, of the installation of video surveillance capturing their images, and providing them with the information required in national data legislation.

Judge Dedov disagreed with the majority. In his view, offensive behaviour is incompatible with the right to private life under the Convention, and the public interest should prevail against unlawfulness. In the present case, he pointed to the fact that the cameras were installed in public spaces, that footage from both the visible and hidden cameras was used to show how the thefts were taking place, and that the employees were aware of the cameras. The supermarket’s losses were significant – between EUR 8,000 and EUR 25,000 each month – so that it could not be said that the surveillance was not proportionate or necessary in the circumstances. This was a Chamber judgment.

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