Information Note on the Court’s case-law 233
López Ribalda and Others v. Spain [GC] – 1874/13 and 8567/13
Judgment 17.10.2019 [GC]
Respect for private life
Covert video-surveillance of supermarket cashiers and sales assistants by employer: no violation
Facts – The applicants worked as cashiers and sales assistants in a supermarket. The supermarket had been sustaining economic losses. In order to investigate these losses, the employer of the applicants decided to install surveillance cameras. Some of the cameras were in plain sight while others were hidden. The applicants were given notice about those cameras that were visible, but not about the hidden ones. The applicants were dismissed when video footage showed that they had been stealing items.
In a judgment of 9 January 2018 (see Information Note 214), a Chamber of the Court held, by six votes to one, that there had been a violation of Article 8 of the Convention. In the Court’s view, the video-surveillance carried out by the employer, which had taken place over a prolonged period of time, had not complied with the requirements stipulated in the relevant legislation. Moreover, the domestic courts had failed to strike a fair balance between the applicants’ right to respect for their private life and their employer’s interest in the protection of its property rights.
On 28 May 2018 the case was referred to the Grand Chamber at the Government’s request.
Law – Article 8
(a) Applicability – The applicants had been subjected to a video-surveillance measure implemented by their employer in their workplace for a period of ten days, the cameras having been directed towards the supermarket checkout area and its surroundings. Thus, while the applicants had not been individually targeted by the video-surveillance, it was not in dispute that they could have been filmed throughout their working day.
As to whether the applicants had had a reasonable expectation that their private life would be protected and respected, the Court observed that their workplace, a supermarket, was open to the public and that the activities filmed there – namely the taking of payments for purchases by the customers – were not of an intimate or private nature. Their expectation as to the protection of their private life was thus necessarily limited. However, even in public places, the creation of a systematic or permanent recording of images of identified persons and the subsequent processing of the images thus recorded could raise questions affecting the private life of the individuals concerned. Domestic law had provided a formal and explicit statutory framework which obliged a person responsible for a video-surveillance system, even in a public place, to give prior information to the persons being monitored by such a system. The applicants had been informed about the installation by their employer of other CCTV cameras in the supermarket, those cameras having been visible and positioned such as to film the shop’s entrances and exits. In those circumstances the applicants had had a reasonable expectation that they would not be subjected to video-surveillance in the other areas of the shop without having been informed beforehand.
As to the processing and use of the video recordings, they had been viewed by a number of people working for the applicants’ employer even before the applicants were informed of their existence. In addition, they constituted the basis of the dismissal of the applicants and had been used in evidence in the employment tribunal proceedings.
Article 8 was therefore applicable.
(i) General principles – The principles established by the court in Bărbulescu v. Romania [GC] were transposable, mutatis mutandis, to the circumstances in which an employer might implement video-surveillance measures in the workplace. Those criteria had to be applied taking into account the specificity of the employment relations and the development of new technologies, which might enable measures to be taken that were increasingly intrusive in the private life of employees. In that context, in order to ensure the proportionality of video-surveillance measures in the workplace, the domestic courts had to take account of the following factors when they weighed up the various competing interests:
– whether the employee had been notified of the possibility of video-surveillance measures being adopted by the employer and of the implementation of such measures: while in practice employees might be notified in various ways, depending on the particular factual circumstances of each case, the notification should normally be clear about the nature of the monitoring and be given prior to implementation;
– the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy: in that connection, the level of privacy in the area being monitored should be taken into account, together with any limitations in time and space and the number of people who had access to the results;
– whether the employer had provided legitimate reasons to justify monitoring and the extent thereof: the more intrusive the monitoring, the weightier the justification that would be required;
– whether it would have been possible to set up a monitoring system based on less intrusive methods and measures: in that connection, there should be an assessment in the light of the particular circumstances of each case as to whether the aim pursued by the employer could have been achieved without interfering with the employee’s privacy to such an extent;
– the consequences of the monitoring for the employee subjected to it: account should be taken, in particular, of the use made by the employer of the results of the monitoring and whether such results had been used to achieve the stated aim of the measure;
– whether the employee had been provided with appropriate safeguards, especially where the employer’s monitoring operations were of an intrusive nature: such safeguards might take the form, among others, of: the provision of information to the employees concerned or the staff representatives as to the installation and extent of the monitoring; a declaration of such a measure to an independent body; or the possibility of making a complaint.
(ii) Application – The employment courts had identified the various interests at stake and had found that the installation of the video-surveillance had been justified by legitimate reasons, namely the suspicion that thefts had been committed. The courts had then examined the extent of the monitoring and the degree of intrusion into the applicants’ privacy, finding that the measure had been limited as regards the areas and staff being monitored and that its duration had not exceeded what was necessary in order to confirm the suspicions of theft. That assessment could not be regarded as unreasonable.
The applicants’ duties had been performed in a place that was open to the public and involved permanent contact with customers. It was necessary to distinguish, in the analysis of the proportionality of a video-surveillance measure, the various places in which the monitoring had been carried out, in the light of the protection of privacy that an employee could reasonably expect. That expectation was very high in places which were private by nature, such as toilets or cloakrooms, where heightened protection, or even a complete ban on video-surveillance, was justified. It remained high in closed working areas such as offices. It was manifestly lower in places that were visible or accessible to colleagues or, as in the applicants’ case, to the general public.
The length of the monitoring (ten days) had not appeared excessive in itself. Only the supermarket manager, the company’s legal representative and the union representative had viewed the recordings obtained through the impugned video-surveillance before the applicants themselves had been informed. Having regard to those factors, the Court took the view that the intrusion into the applicants’ privacy had not attained a high degree of seriousness. The consequences of the impugned monitoring for the applicants had been significant. However, the video-surveillance and recordings had not been used by the employer for any purposes other than to trace those responsible for the recorded losses of goods and to take disciplinary measures against them. Moreover, the extent of the losses identified by the employer suggested that thefts had been committed by a number of individuals and the provision of information to any staff member might well have defeated the purpose of the video-surveillance, which was to discover those responsible for the thefts but also to obtain evidence for use in disciplinary proceedings against them.
The requirement of transparency and the ensuing right to information were fundamental in nature, particularly in the context of employment relationships, where the employer had significant powers with regard to employees and any abuse of those powers were to be avoided. The provision of information to the individual being monitored and its extent constituted just one of the criteria to be taken into account in order to assess the proportionality of a measure of that kind in a given case. However, if such information was lacking, the safeguards deriving from the other criteria would be all the more important. At the same time, given the importance of the right to information in such cases, only an overriding requirement relating to the protection of significant public or private interests could justify the lack of prior information.
The employment courts which had examined the applicants’ claims had carried out a detailed balancing exercise between, on the one hand, their right to respect for their private life, and on the other the employer’s interest in ensuring the protection of its property and the smooth operation of the company. The domestic courts had verified whether the video-surveillance had been justified by a legitimate aim and whether the measures adopted for that purpose had been appropriate and proportionate, having observed in particular that the legitimate aim pursued by the employer could not have been attained by measures that had been less intrusive for the applicants’ rights.
In the specific circumstances of the case, having particular regard to the degree of intrusion into the applicants’ privacy and to the legitimate reasons justifying the installation of the video-surveillance, the employment courts had been able, without overstepping the margin of appreciation afforded to national authorities, to take the view that the interference with the applicants’ privacy had been proportionate. Thus, while the Court could not accept the proposition that, generally speaking, the slightest suspicion of misappropriation or any other wrongdoing on the part of employees might justify the installation of covert video-surveillance by an employer, the existence of reasonable suspicion that serious misconduct had been committed and the extent of the losses identified in the case would appear to constitute weighty justification. That was all the more so in a situation where the smooth functioning of a company was endangered not merely by the suspected misbehaviour of one single employee, but rather by the suspicion of concerted action by several employees, as that created a general atmosphere of mistrust in the workplace.
Having regard to the significant safeguards provided by the Spanish legal framework, including the remedies that the applicants had failed to use, and the weight of the considerations justifying the video-surveillance, as taken into account by the domestic courts, the national authorities had not failed to fulfil their positive obligations under Article 8 such as to overstep their margin of appreciation.
Conclusion: no violation (fourteen votes to three).
The Court also held, unanimously, that there had been no violation of Article 6 § 1, in particular as regards the use of the video-surveillance images.
(See Bărbulescu v. Romania [GC], 61496/08, 5 September 2017, Information Note 210; Köpke v. Germany (dec.), 420/07, 5 October 2010, Information Note 134; and the Factsheet on Workplace surveillance)