Factsheet – Surveillance at workplace

Last Updated on November 4, 2019 by LawEuro

Factsheet – Surveillance at workplace

October 2019
This Factsheet does not bind the Court and is not exhaustive

Surveillance at workplace

Article 8 (right to respect for private and family life, home and correspondence) of the European Convention on Human Rights provides that:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In order to determine whether the interference by the authorities with the applicants’ private life or correspondence was necessary in a democratic society and a fair balance was struck between the different interests involved, the European Court of Human Rights examines whether the interference was in accordance with the law, pursued a legitimate aim or aims and was proportionate to the aim(s) pursued.

Monitoring of telephone and internet use

Halford v. the United Kingdom

25 June 1997 (judgment)

The applicant, who was the highest-ranking female police officer in the United Kingdom, brought discrimination proceedings after being denied promotion to the rank of Deputy Chief Constable over a period of seven years. Before the European Court of Human Rights she alleged in particular that her office and home telephone calls had been intercepted with a view to obtaining information to use against her in the course of the proceedings.

The European Court of Human Rights held that there had been a violation of Article 8 of the European Convention on Human Rights as regards the interception of calls made on the applicant’s office telephones. It first found that the conversations held by the applicant on her office telephones fell within the scope of the notions of “private life” and “correspondence” and that Article 8 of the Convention was therefore applicable to this part of the complaint. The Court further noted that there was a reasonable likelihood that calls made by the applicant from her office were intercepted by the police with the primary aim of gathering material to assist in the defence of the sex-discrimination proceedings brought against them. This interception constituted an interference by a public authority with the exercise of the applicant’s right to respect for her private life and correspondence. Lastly, the Court observed that the Interception of Communications Act 1985 did not apply to internal communications systems operated by public authorities and that there was no other provision in domestic law to regulate interceptions of telephone calls made on such systems. It could not, therefore, be said that the interference was “in accordance with the law”, since the domestic law had not provided adequate protection to the applicant against interferences by the police with her right to respect for her private life and correspondence. In this case the Court also held that there been a violation of Article 13 (right to an effective remedy) of the Convention, finding that the applicant had bee unable to seek relief at national level in relation to her complaint concerning her office telephones On the other hand, the Court held that there had been no violation of Article 8 and no violation of Article 13 of the Convention as regards the calls made from the applicant’s home, since it did in particular not find it established that there had been interference regarding those communications.

Copland v. the United Kingdom

3 April 2007 (judgment)

The applicant was employed by Carmarthenshire College, a statutory body administered by the State. In 1995 she became the personal assistant to the College Principal and was required to work closely with the newly-appointed Deputy Principal. Before the Court, she complained that, during her employment at the College, her telephone, e-mail and internet usage had been monitored at the Deputy Principal’s instigation.

The Court held that there had been a violation of Article 8 of the Convention. It recalled in particular that, according to its case-law, telephone calls from business premises are prima facie covered by the notions of “private life” and “correspondence”. It followed logically that e-mails sent from work should be similarly protected, as should information derived from the monitoring of personal internet usage. Concerning the applicant, she had however been given no warning that her calls would be liable to monitoring and therefore had a reasonable expectation as to the privacy of calls made from her work telephone. The same expectation ought to apply to her e-mail and internet usage. The Court also noted that the mere fact that the data may have been legitimately obtained by the college, in the form of telephone bills, was no bar to finding an interference. Nor was it relevant that it had not been disclosed to third parties or used against the applicant in disciplinary or other proceedings. The Court therefore found that the collection and storage of personal information relating to the applicant’s use of the telephone, e-mail and internet, without her knowledge, had amounted to an interference with her right to respect for her private life and correspondence. In the present case, while leaving open the question whether the monitoring of an employee’s use of a telephone, e-mail or internet at the place of work might be considered “necessary in a democratic society” in certain situations in pursuit of a legitimate aim, the Court concluded that, in the absence of any domestic law regulating monitoring at the material time, the interference was not “in accordance with the law”. Lastly, having regard to its decision on Article 8 of the Convention, the Court did not consider it necessary in this case to examine the applicant’s complaint also under Article 13 (right to an effective remedy) of the Convention.

Bărbulescu v. Romania

5 September 2017 (Grand Chamber – judgment)

This case concerned the decision of a private company to dismiss an employee – the applicant – after monitoring his electronic communications and accessing their contents. The applicant complained that his employer’s decision was based on a breach of his privacy and that the domestic courts had failed to protect his right to respect for his private life and correspondence.

The Grand Chamber held, by eleven votes to six, that there had been a violation of Article 8 of the Convention, finding that the Romanian authorities had not adequately protected the applicant’s right to respect for his private life and correspondence. They had consequently failed to strike a fair balance between the interests at stake. In particular, the national courts had failed to determine whether the applicant had received prior notice from his employer of the possibility that his communications might be monitored; nor had they had regard either to the fact that he had not been informed of the nature or the extent of the monitoring, or the degree of intrusion into his private life and correspondence. In addition, the national courts had failed to determine, firstly, the specific reasons justifying the introduction of the monitoring measures; secondly, whether the employer could have used measures entailing less intrusion into the applicant’s private life and correspondence; and thirdly, whether the communications might have been accessed without his knowledge.

Opening of personal files stored on a professional computer

Libert v. France

22 February 2018 (judgment)

This case concerned the dismissal of an SNCF (French national railway company) employee after the seizure of his work computer had revealed the storage of pornographic files and forged certificates drawn up for third persons. The applicant complained in particular that his employer had opened, in his absence, personal files stored on the hard drive of his work computer.

The Court held that there had been no violation of Article 8 of the Convention, finding that in the present case the French authorities had not overstepped the margin of appreciation available to them. The Court noted in particular that the consultation of the files by the applicant’s employer had pursed a legitimate aim of protecting the rights of employers, who might legitimately wish to ensure that their employees were using the computer facilities which they had placed at their disposal in line with their contractual obligations and the applicable regulations. The Court also observed that French law comprised a privacy protection mechanism allowing employers to open professional files, although they could not surreptitiously open files identified as being personal. They could only open the latter type of files in the employee’s presence. The domestic courts had ruled that the said mechanism would not have prevented the employer from opening the files at issue since they had not been duly identified as being private. Lastly, the Court considered that the domestic courts had properly assessed the applicant’s allegation of a violation of his right to respect for his private life, and that those courts’ decisions had been based on relevant and sufficient grounds.

Video surveillance

Köpke v. Germany

5 October 2010 (decision on the admissibility)

The applicant, a supermarket cashier, was dismissed without notice for theft, following a covert video surveillance operation carried out by her employer with the help of a private detective agency. She unsuccessfully challenged her dismissal before the labour courts. Her constitutional complaint was likewise dismissed.

The Court declared inadmissible, as being manifestly ill-founded, the applicant’s complaint under Article 8 of the Convention, finding that the domestic authorities had struck a fair balance between the employee’s right to respect for her private life, her employer’s interest in the protection of its property rights and the public interest in the proper administration of justice. The Court noted in particular that the measure complained of had been limited in time (two weeks) and had only covered the area surrounding the cash desk and accessible to the public. The visual data obtained had been processed by a limited number of persons working for the detective agency and by staff members of the employer. They had been used only in connection with the termination of her employment and the proceedings before the labour courts. It therefore concluded that the interference with the applicant’s private life had been restricted to what had been necessary to achieve the aims pursued by the video surveillance. The Court observed, however, in this case that the competing interests concerned might well be given a different weight in the future, having regard to the extent to which intrusions into private life were made possible by new, more and more sophisticated technologies.

Antović and Mirković v. Montenegro

28 November 2017

This case concerned an invasion of privacy complaint by two professors at the University of Montenegro’s School of Mathematics after video surveillance had been installed in areas where they taught. They stated that they had had no effective control over the information collected and that the surveillance had been unlawful. The domestic courts rejected a compensation claim however, finding that the question of private life had not been at issue as the auditoriums where the applicants taught were public areas.

The Court held that there had been a violation of Article 8 of the Convention, finding that the camera surveillance had not been in accordance with the law. It first rejected the Government’s argument that the case was inadmissible because no privacy issue had been at stake as the area under surveillance had been a public, working area. In this regard the Court noted in particular that it had previously found that private life might include professional activities and considered that was also the case with the applicants. Article 8 was therefore applicable. On the merits of the case, the Court then found that the camera surveillance had amounted to an interference with the applicants’ right to privacy and that the evidence showed that that surveillance had violated the provisions of domestic law. Indeed, the domestic courts had never even considered any legal justification for the surveillance because they had decided from the outset that there had been no invasion of privacy.

López Ribalda and Others v. Spain

17 October 2019 (Grand Chamber)

This case concerned the covert video-surveillance of employees which led to their dismissal. The applicants complained about the covert video-surveillance and the Spanish courts’ use of the data obtained to find that their dismissals had been fair. The applicants who signed settlement agreements also complained that the agreements had been made under duress owing to the video material and should not have been accepted as evidence that their dismissals had been fair.

The Grand Chamber held that there had been no violation of Article 8 of the Convention in respect of the five applicants. It found in particular that the Spanish courts had carefully balanced the rights of the applicants – supermarket employees suspected of theft – and those of the employer, and had carried out a thorough examination of the justification for the video-surveillance. A key argument made by the applicants was that they had not been given prior notification of the surveillance, despite such a legal requirement, but the Court found that there had been a clear justification for such a measure owing to a reasonable suspicion of serious misconduct and to the losses involved, taking account of the extent and the consequences of the measure. In the present case the domestic courts had thus not exceeded their power of discretion (“margin of appreciation”) in finding the monitoring proportionate and legitimate. The Court also held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention, finding in particular that the use of the video material as evidence had not undermined the fairness of the trial.

Further reading

See in particular:

– “Personal data protection”, factsheet prepared by the Court’s Press Unit

– Handbook on European Data Protection Law, European Union Agency for Fundamental Rights / Council of Europe, 2014

– Council of Europe web page on data protection