European Court rules on the use of camera surveillance in universities

On 28 November 2017, the European Court of Human Rights (the Court) ruled that the use of camera surveillance by the University of Montenegro (the University) in its lecture halls constituted an unjustifiable limitation of the right to privacy under article 8 of the European Convention on Human Rights (the European Convention).

The matter goes back to February 2011, when the School of Mathematics introduced video surveillance in seven lecture venues and in front of the Dean’s office. The stated aim was to ensure the safety of property and people, as well as for the surveillance of teaching. The complaint was raised by two academics, relying on the Montenegro Personal Data Protection Act, who argued that this video surveillance and collection of data was being done without their consent, and sought to have the cameras removed and the data erased.

In the first instance, the Court had to determine whether activities in the workplace fell within the ambit of “private life” referred to under article 8 of the European Convention. The majority held that private life may include professional activities or activities taking place in a public context. As was noted: “It is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity to develop relationships with the outside world, and it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not.”

The majority of the Court went on to note that the use of video surveillance of employees in their workplace – whether it is covert or not – must be considered a considerable intrusion into the employees’ private lives. In this regard, the lecture venues were the workplaces of the lecturers, used for teaching and interacting with students. The footage was recorded and reproducible documentation of the lecturers’ conduct in their workplace, which could not be evaded by the lecturers.

With reference to the Personal Data Protection Act, two provisions provided for public institutions, such as the University, to make use of video surveillance:

• Section 35, which permits video surveillance in areas of access to video official premises. However, this provision did not extend to the use of video surveillance in lecture venues.
• Section 36, which permits video surveillance in official or business premises, “but only if the aims provided for by that section, notably the safety of people or property or the protection of confidential data, cannot be achieved in any other way”. The majority of the Court noted that there was no evidence that the property or people of the University were in jeopardy. Furthermore, the University’s other stated aim – that being surveillance of teaching – was not covered by section 36.

Accordingly, the majority of the Court concluded that the interference with the right was not in accordance with the law, and constituted a violation of article 8 of the European Convention.

In the Joint Concurring Opinion of Judges Vučinić and Lemmens, the importance of academic freedom was highlighted. As was noted: “The setting is a very specific one. The teacher teaches students who are enrolled in his or her class. The relationship between teacher and students takes shape during the whole period of teaching … In the auditorium the teacher can allow him- or herself to act (“perform”) in a way he or she would perhaps never do outside the classroom.” As such, the judges were in agreement with the majority that there was a reasonable expectation of privacy in the academic environment, where both teaching and learning activities were covered by academic freedom.

However, in the Joint Dissenting Opinion of Judges Spano, Bianku and Kjølbro, the judges disagreed with the majority of the Court that the video surveillance fell within the ambit of “private life” under article 8(1) of the European Convention. The judges noted that video monitoring or surveillance did not in itself amount to an interference with the private lives of the persons monitored, and would depend on the specific circumstances of the case. In the present case, the judges found it conclusive that, amongst other things, the monitoring took place at the university auditoriums, the applicants had been notified of the video surveillance, what was monitored was the applicants’ professional activity, there was no audio recording and thus no recording of the teaching or discussions, the pictures were blurred and the persons could not easily be recognised, the video recordings were only accessible to the dean, and the information was not subsequently used. As such, the judges were of the view that the majority had overly broadened the notion of “private life” under article 8(1) of the European Convention in the present case.

Read the Court’s full judgment in Antović and Mirković v. Montenegro here.

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