Information Note on the Court’s case-law 214
López Ribalda and Others v. Spain – 1874/13 and 8567/13
Judgment 9.1.2018 [Section III]
Respect for private life
Covert video surveillance of supermarket cashiers by employer: violation
[This case was referred to the Grand Chamber on 28 May 2018]
Facts – The applicants worked as supermarket cashiers. In order to investigate economic losses, their employer installed surveillance cameras consisting of both visible, of which the applicants were given notice, and hidden cameras, of which they were not. The applicants were dismissed following video footage showing them stealing items. Before the European Court, the applicants argued, inter alia, that the covert video surveillance ordered by their employer had violated their right to privacy protected by Article 8.
Law – Article 8: The covert video surveillance of employees in their workplace had to be considered as a considerable intrusion into their private life. It entailed a recorded and reproducible documentation of their conduct at their workplace, which, being obliged under the employment contract to perform the work in that place, they could not evade. The applicants’ “private life” was therefore concerned by these measures.
Although the purpose of Article 8 was essentially to protect the individual against arbitrary interference by the public authorities, it did not merely compel the State to abstain from such interference: in addition to that primarily negative undertaking, there might be positive obligations inherent in an effective respect for private life. Those obligations might involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. Therefore, the Court had to examine whether the State, in the context of its positive obligations under Article 8, had struck a fair balance between the applicants’ right to respect for their private life and both their employer’s interest in the protection of its organisational and management rights concerning its property rights, as well as the public interest in the proper administration of justice.
The covert video surveillance was carried out after losses had been detected by the shop supervisor, raising an arguable suspicion of theft committed by the applicants as well as other employees and customers. The visual data obtained entailed the storage and processing of personal data, closely linked to the private sphere of individuals. That material was thereby processed and examined by several persons working for the applicants’ employer (among others, the union representative and the company’s legal representative) before the applicants themselves were informed of the existence of the recordings.
The legislation in force at the time of the events contained specific provisions on personal data protection. As acknowledged by the domestic courts, the applicants’ employer did not comply with the obligation to inform the data subjects of the existence of a means of collecting and processing their personal data, as prescribed in the domestic legislation. In addition, the Government had specifically acknowledged that the employees had not been informed of the installation of covert video surveillance zoomed in on the cash desks or of their rights under the Personal Data Protection Act.
Despite that, the domestic courts had considered that the measure had been justified (in that there had been reasonable suspicions of theft), appropriate to the legitimate aim pursued, and necessary and proportionate, since there had been no other equally effective means of protecting the employer’s rights which would have interfered less with the applicants’ right to respect for their private life.
The situation in the present case differed from that in the Court’s decision in Köpke v. Germany. In the present case, the legislation in force clearly established that every data collector had to inform the data subjects of the existence of a means of collecting and processing their personal data. 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. Further, in the present case and unlike in Köpke, the covert video surveillance did not follow a prior substantiated suspicion against the applicants and was consequently not aimed at them specifically, but at all the staff working on the cash registers, over weeks, without any time limit and during all working hours. In Köpke the surveillance measure had been limited in time – it was carried out for two weeks – and only two employees had been targeted by the measure. In the present case, however, the decision to adopt surveillance measures was based on a general suspicion against all staff in view of the irregularities which had previously been revealed by the shop manager.
Consequently, the Court could not share the domestic courts’ view on the proportionality of the measures adopted by the employer with the legitimate aim of protecting the employer’s interest in the protection of its property rights. The video surveillance carried out by the employer, which took place over a prolonged period, did not comply with the requirements stipulated in the relevant legislation, and, in particular, 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, notably by previously informing the applicants, even in a general manner, of the installation of a system of video surveillance and providing them with the information prescribed in the Personal Data Protection Act.
Having regard to the foregoing, and notwithstanding the respondent State’s margin of appreciation, the domestic courts had failed to strike a fair balance between the applicants’ right to respect for their private life under Article 8 of the Convention and their employer’s interest in the protection of its property rights.
Conclusion: violation (six votes to one).
Article 41: EUR 4,000 each in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
The Court also held, unanimously, that there had been no violation of Article 6 § 1, in particular, as regards the use of evidence obtained in breach of Article 8.
(See also Bărbulescu v. Romania [GC], 61496/08, 5 September 2017, Information Note 210; and Köpke v. Germany (dec.), 420/07, 5 October 2010, Information Note 134)