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Video surveillance at work breached employee privacy, ECHR rules

21 Dec 2017 By Miriam Kenner

Case will make it harder to justify CCTV in the workplace, say legal experts

An international court has ruled that video surveillance of lecture halls where a professor worked violated his right to privacy, in a case that should cause employers to rethink if and how they use workplace surveillance and monitoring tools.

The European Court of Human Rights’ (ECHR) recent judgment in Antović and Mirković v Montenegro is particularly relevant given the increasing use of surveillance to monitor employees, and the upcoming implementation of the new General Data Protection Regulation (GDPR) in 2018.

Finding non-covert video surveillance unlawful, UK organisations’ CCTV use may now come under closer scrutiny. The right to respect for private and family life is enshrined under Article 8 of the European Convention on Human Rights, which applies to the UK as a contracting party.

The applicants, Ms Antović and Mr Mirković, worked at the University of Montenegro. The university told its professors, including the applicants, that it had introduced video surveillance in the auditoriums where classes were held, in seven amphitheatres and near the dean’s office, to ensure the safety of property and people, including students, and for the purposes of teaching surveillance. The university said access to the data collected was protected by codes known only to the dean, and would be stored for a year.

The applicants claimed under Article 8 of the convention that the alleged unlawful installation and use of video surveillance equipment in the auditoriums where they held classes, and the recording of their lectures, violated their right to respect for their private life. 

The Strasbourg court ruled by four votes to three that while the university is a public sphere, private life encompasses business and professional activities.

The applicants first complained to the Personal Data Protection Agency that the video surveillance and collection of data without their consent breached the Personal Data Protection Act. The agency ordered the removal of the cameras, finding no evidence that safety was an issue and therefore no legitimate grounds to collect the data.

As the amphitheatre where they taught was locked before and after classes, and the only property there was fixed desks and chairs and a blackboard, the applicants said they knew of no reason to fear for anybody’s safety. There were other methods for protecting people and property and monitoring classes. They requested the cameras be removed and the data erased.

The applicants brought compensation claims, but the Montenegrin courts held that Article 8 had not been violated.

The ECHR, however, found that the university’s camera surveillance amounted to an interference with their right to privacy and, on the evidence, the surveillance had breached domestic law.

It ruled that ‘private life’ is a broad term, and the law applied to the university as a workplace: “It would be too restrictive to limit the notion of ‘private life’ to an ‘inner circle’ in which the individual may live his own personal life as he chooses [...].”

Article 8 “guarantees a right to ‘private life’ in the broad sense, including the right to lead a ‘private social life’”, allowing the individual to develop his or her social identity, which extended to others, the court ruled.

In previous judgments, the court had found that the concept of private life may include surveillance of people in the workplace, professional activities or activities in public contexts. Previously, it had found covert video surveillance at work to be an intrusion into an employee’s private life – and that there was no reason to depart from that for such non-covert surveillance in this case.

Makbool Javaid, employment partner at Simons Muirhead & Burton, told People Management that, while the case does not make staff surveillance illegal, it broadens the scope of what individuals might legitimately argue to be their private lives and the burden on the employer to justify it. This applies especially to workplace areas that may be seen as ‘interaction’ zones, such as canteens, rest areas and training rooms.

Under the Data Protection Act and the GDPR, “employers will need a detailed rationale for their surveillance, including what they are hoping to capture, whether there is a real risk and whether the surveillance will be proportionate”.

The case will potentially make it harder for an employer to justify CCTV in a workplace, Javaid said.

Alan Delaney, director at Dentons, said many employers in the UK still do not recognise the extent to which the court finds the workplace is private life. Although the world is changing in regards to surveillance, and employers tend to take a view that they can do what they like, there remains a right to privacy at work.

The case continues a trend started with Halford, and the court here clearly states that video surveillance was a “considerable intrusion into the employee’s private life”, Delaney added.

Even when surveillance signs are displayed, CCTV could still be unlawful. As it is quite common in the workplace, employers must be mindful that the Strasbourg court will stand up to and take a firmer stance on extensive surveillance, said Delaney.

Although the court did not consider proportionality, the case also underlines that employers must take a proportionate approach, following the Data Protection Act – and from next year, the GDPR – alongside Information Commissioner's Office (ICO) guidance on CCTV and monitoring workers, Javaid said.

In England and Wales, the ICO provides an employment practices code guiding organisations on data protection law compliance. It clarifies that employers should consider the nature of the problem being addressed and whether a surveillance system would be a justified and proportionate response.

These matters need to be considered objectively as part of an assessment of the scheme’s impact on people’s privacy, by conducting a privacy impact assessment. If the same facts in this case applied in the UK, it is hard to see how video surveillance would be justified, said Javaid.

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