European Court finds use of covert surveillance violates privacy rights
Lopez Ribalda and Others v Spain, Application Nos. 1874/13 and 8567/13
The European Court of Human Rights (ECtHR) has upheld a claim by five Spanish nationals that their right to respect for private life had been violated by the use of covert surveillance equipment.
The applicants had been working as cashiers at M.S.A., a supermarket chain in Spain. Their employer began to notice certain irregularities, and in June 2009 installed surveillance cameras consisting of both visible and hidden cameras. The company gave its workers prior notice of the installation of the visible cameras, but did not inform them of the hidden cameras. The applicants were caught on camera helping co-workers and customers to steal items, and stealing themselves. They were accordingly dismissed.
Before the Third Section of the ECtHR, the applicants complained, amongst other things, that the covert video surveillance ordered by their employer, as well as the recording and the use of the data obtained in the proceedings before the domestic courts, had breached their right to privacy under article 8 of the European Convention on Human Rights (the European Convention). The ECtHR was therefore required to assess whether an appropriate balance had been struck between the applicants’ right to respect for their private life, their employer’s interest in the protection of its organisational and management rights concerning its property rights, and the public interest in the proper administration of justice.
The ECtHR observed that the visual data obtained entailed the storage and processing of personal data, closely linked to the private sphere of individuals. This was processed and examined by several individuals working for the employer before the applicants were informed of the existence of the video recordings. The ECtHR observed further that the employer did not comply with its obligations under the Spanish Data Protection Act (as it read at the time) to inform data subjects of the existence of a means of collecting and processing their personal data. As stated by the ECtHR, in a situation where the right of every data subject to be informed of the existence, aim and manner of covert video surveillance was clearly regulated and protected by law, the applicants had a reasonable expectation of privacy.
Accordingly, the ECtHR held that the video surveillance did not comply with the obligation to previously, explicitly, precisely and unambiguously inform those concerned about the existence and particular characteristics of a system collecting personal data. The rights of the employer could have been safeguarded, at least to a degree, by other means, for instance by informing the applicants of the video surveillance system being installed. As such, the ECtHR concluded that the applicants’ right under article 8 of the European Convention had been violated, and the applicants were awarded €4,000 (euros) in respect of non-pecuniary damage.
In a dissenting opinion, Judge Dedov expressed the view that offensive behaviour is incompatible with the right to private life under the European Convention, and that the actions of the employer in the circumstances could not be considered abusive, arbitrary or disproportionate. Rather, according to the dissenting opinion, the applicants should not be legally allowed to profit from their own wrongdoing, and the European Convention cannot be construed and interpreted in a way to allow wrongdoing.
The full judgment is accessible here.
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