Landmark ECHR ruling decides privacy rights of Spanish supermarket cashiers covertly filmed by security cameras were not violated

On 17 October 2019 The European Court of Human Rights (ECHR) issued its judgment in the López Ribalda and Others v. Spain case, ruling that there had been “no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, and, unanimously that there had been no violation of Article 6 § 1 (right to a fair  trial).” 

The case at hand concerned the hidden video surveillance of employees which led to their dismissal from a supermarket chain after it was revealed that they were jointly engaged in both stealing goods and helping others to steal goods from the chain. Their employer, after suspecting such illicit behavior, installed a video surveillance system which monitored their activity.  The employees were only informed of some of the cameras and continued their concerted illicit activities after which they were informed of being caught on camera and subsequently dismissed. 

The ECHR determined 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 vital point of the argument made by the dismissed employees was that they had not been adequately notified of the presence of the video cameras, a legal requirement, which, however, had been justified insofar as the employer had “a reasonable suspicion of serious misconduct and to the losses involved, taking account of the extent and the consequences of the measure.”

In this decision, the Court determined that the principles established in the Barbelescu v. Romania case, concerning the monitoring of an employee’s email account, were applicable to the case of workplace video surveillance.  

To this end, “domestic courts had to consider whether employees had been informed of such surveillance measures; the extent of the monitoring and the degree of intrusion; whether legitimate reasons had been provided; the possibility for less intrusive measures; the consequences of the monitoring for the employees; and the provision of appropriate safeguards, such as appropriate information or the possibility of making a complaint.” 

With respect to the prior notification of video-surveillance measures, the Court found that, “only an overriding requirement relating to the protection of significant public or private interests could justify the lack of prior notification,” and that  “While the Court could not accept that simply a slight suspicion of wrongdoing by an employee could justify the installation of covert video-surveillance by an employer, it found that the reasonable suspicion of serious misconduct and the extent of the losses in this case could be a weighty justification. This was all the more so when there was a suspicion of concerted action.” 

“Furthermore, the applicants had had other legal remedies available such as a complaint to the Data Protection Authority or an action in court for an alleged breach of their rights under the Personal Data Protection Act, however, they had not used them.” And therefore “Given the domestic legal safeguards, including the remedies which the applicants had failed to use, and the considerations justifying the video-surveillance as assessed by the domestic courts, the Court held that the authorities had not overstepped their margin of appreciation and there had been no violation of Article 8.”

Concerning the domestic court’s decision, the ECHR determined that “the courts had correctly identified the interests at stake, referring expressly to the applicants’ right to respect for their private life and the balance to be struck between that right and the employer company’s interest in protecting its property and the smooth running of its operations.” Furthermore, “The courts had gone on to examine the other criteria, such as whether there were legitimate reasons for the surveillance, finding it to be justified by the suspicion of theft. They had also looked at the extent of the measure, holding that it had been limited to the checkout area and had not exceeded what was necessary, a conclusion the Court did not find unreasonable.”

The Court also noted that the applicants worked in a public space and “distinguished between the levels of privacy an employee could expect depending on location” meaning that in chancing rooms and toilets a higher level of privacy would be expected; that the video surveillance only lasted 10 days and a limited number of individuals viewed the footage, and therefore “the intrusion into the applicants’ privacy had not attained a high degree of seriousness.”

Finally, with respect to the Spanish Court’s decision, no other measures would have met the legitimate aim sought by the employer and “Spanish law also had safeguards to prevent the improper use of personal data in the shape of the Personal Data Protection Act, while the Constitutional Court required that the ordinary courts carry out reviews of video-surveillance measures for their conformity with the Constitution.” 

With respect to Article 6 § 1, the Court considered whether the use of the video recordings as evidence undermined the fairness of the proceedings, determining that:

  1. the applicants had the opportunity to contest the use of the video recordings,
  2. the video material did not constitute the only evidence in the case file and the applicants did not questioned its authenticity or accuracy 
  3. the courts took  other evidence into consideration, including testimony of the parties. 

Given the above, the Court determined that the use of the video recordings did not undermine the fairness of the trial. 

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