18 January 2018
The European Court of Human Rights (‘ECtHR’) issued, on 9 January 2018, its judgement in López Ribalda v. Spain (‘the Judgement’) regarding the covert video surveillance of a Spanish supermarket chain’s employees after suspicions of theft had arisen. The Judgement centred around the fact that the employer had installed both visible and hidden cameras, and only advised its workers of those that were visible. The ECtHR held that under Spanish law, individuals should be clearly informed about the storage and processing of personal data, but that in this case, the applicants had been given no such warning. Moreover, the ECtHR held that the employer’s rights could have been safeguarded by other means and that it could have at least provided the applicants with general information about the surveillance. As a result, the ECtHR ruled that the domestic courts had failed to strike a fair balance between the applicants’ right to privacy and the employer’s property rights.
Joaquín Muñoz Rodríguez, Lawyer at Ontier LLP, told DataGuidance, “The Judgement criticises the balance that national courts had made between the rights at stake. This categorical approach is surprising because, as Judge Dmitry Dedov pointed out, in a previous, almost identical case, Köpke v. Germany, the ECtHR’s criterion was different, since rules in Germany do not include such an obligation on the employer. We can therefore conclude that the ECtHR considered that in this case the employees’ expectation of privacy was greater than in Köpke, as there is a legal requirement for employers to inform employees when they are being recorded by video surveillance, and therefore, that their rights had been infringed. In my opinion, such cases are difficult to resolve because there are strong arguments for tipping the scales in favour of either side. As a result, it is not easy for me to understand a judgement that is so categorical, where the judges have given such little importance to the great losses suffered by the employer, when it was demonstrated that suspicions regarding theft from employees were justified. On the other hand, the fact that not only suspected employees, but all the employees were investigated and that the hidden cameras were installed with the apparent intention of remaining, meant that the principle of proportionality was not complied with. Therefore, it is interesting to remark upon the opinion expressed by Judge Dedov that the right to data protection should never be used as an alibi to commit criminal acts.”
The Judgement criticises the balance that national courts had made between the rights at stake. This categorical approach is surprising
Following data obtained via the covert surveillance, workers suspected of theft were called to individual meetings where the applicants admitted involvement in thefts and dismissed on disciplinary grounds. The applicants subsequently challenged the dismissals; however, they were upheld at first instance by employment tribunals and on appeal by the Spanish High Court of Justice, as the judiciary had accepted the video evidence as having been obtained lawfully. Relying on Articles 6 and 8 of the European Convention on Human Rights, the applicants filed a complaint regarding the covert video surveillance and the courts’ use of the data obtained to find that their dismissals had been fair. Three of the applicants also complained that the settlement agreements that they signed had been made under duress owing to the video material and should not have been accepted as evidence that their dismissals had been fair. However, the ECtHR found that the proceedings as a whole had been fair, because the video material was not the only evidence the domestic courts had relied on when upholding the dismissals and the applicants had been able to challenge the recordings in court.
Muñoz Rodríguez highlighted, “The General Data Protection Regulation (Regulation (EU) 2016/679) (‘GDPR’) will apply as of May. In addition, the current Spanish data protection law will be replaced by a new organic law on data protection (‘the Bill’) which is currently going through the legislative process for adoption. The current wording of the Bill contains an article on video surveillance, which specifically includes the duty of employers to inform workers about the installation of camera systems for the exercise of control functions. Moreover, and of further interest, it states in a strict manner that, in the event that the images capture the flagrant commission of a criminal act, the absence of information given to employees will not deprive the images of evidentiary value, without prejudice – I would point out – to the responsibilities that may arise from this absence.”
Alexis Kateifides | Privacy Analyst