CCTV surveillance and the right to privacy

Lopez Ribalda v Spain

Shop workers’ right to privacy was not breached when a supermarket relied on covertly recorded CCTV images to dismiss them for theft.

Background

A Spanish supermarket installed surveillance cameras (CCTV) to address suspected theft after stock losses over a five-month period reached many thousands of Euros. Workers were only told about the visible cameras, not others which had been placed covertly. Several employees were dismissed relying on covert images. They alleged the images had been obtained in breach of their right to privacy under art. 8 of the European Convention on Human Rights. The Spanish employment tribunal held that the employer’s actions were justified, appropriate, necessary and proportionate. Further appeals in Spain failed and the workers took their case to Europe. The ECHR Chamber held that there had been a violation of art. 8. The Spanish government appealed further to the ECHR Grand Chamber.

ECHR Grand Chamber judgment

The appeal was allowed by a majority decision.

The majority held that the principles set out by the Grand Chamber in Barbulescu (relating to monitoring employees’ communications at work) can be applied to an employer’s covert use of CCTV. The key factors are:

  • whether the employee has been notified of the possibility of video surveillance measures being adopted and of how such measures will be implemented
  • the extent of the surveillance by the employer and the degree of intrusion into the employee’s privacy
  • whether the employer has provided legitimate reasons to justify covert video surveillance and the extent of it
  • whether it would have been possible to set up a surveillance system based on less intrusive methods
  • the consequences of the surveillance for the employee subjected to it, and
  • whether the employee has been provided with appropriate safeguards, especially where the employer’s surveillance operations are of an intrusive nature

Applying these factors, the majority held that the workers’ claims failed because of the scale of the theft involved, the relatively short duration of the monitoring (around two weeks), the fact that the monitoring was in a public area (where there was a low expectation of privacy), the limited amount of people who could view/access the images, and the fact that telling the workers of the monitoring would have defeated its purpose.

Link to judgment: https://www.bailii.org/eu/cases/ECHR/2019/752.html

Comment

Common sense has prevailed in this matter given that the covert recordings were of employees breaking the law. However, it emphasises the importance of employers making sure that before covert surveillance is undertaken, they consider whether there are better, more proportionate ways of finding out if an employee is stealing, for instance putting coloured dye on money.