European Court of Human Rights changes doctrine on video surveillance of workers: temporary hidden cameras are valid if there are suspicions

If there is one subject matter that, without fear of misunderstandings, we can confirm has been the object of major controversy and analysis by different national and European courts it is that relating to the installation of video surveillance cameras in the workplace, on a par with the matter relating to the control, review and monitoring of new technology work tools, e,g., email, internet browsing and tracking devices.

Regarding video surveillance, the focus of analysis has changed from the Constitutional Court’s analysis from the perspective of the right to privacy in relation to this type of installation (establishing the requirements necessary to ensure that installation did not breach the right to privacy) to a focus in recent years analyzing an additional aspect: what is known as the “right-to-know standard” i.e., the worker’s right to know who is processing his or her personal data and for which purpose.

These two matters, together with the right to a fair trial, were analyzed by Section III of the European Court of Human Rights in the “López Ribalda and Others v. Spain,” case in which it issued a first judgment considering that the measure was not proportional, due to the lack of previous, explicit, clear and precise information provided to the workers regarding the installation.

In that case, the court examined a case involving a supermarket chain where irregularities were noticed between stock levels and actual sales, with losses confirmed over several months.

This led to the installation of cameras, enabling the supermarket chain to detect irregular behavior by five workers who were then dismissed on disciplinary grounds, with the court of first instance declaring fair dismissal and the the High Court of Justice of Catalonia confirming this.

After that, and before the refusal to consider application of the appeals filed with the Supreme Court and the Constitutional Court, the workers filed an appeal with the ECHR which, as we already mentioned, ended with a first judgment that declared the measure unlawful, in essence, due to the lack of information and the disproportionality mentioned before.

That decision was reviewed by the ECHR’s Grand Chamber and, on October 17, with a majority of 14 votes against 3, it issued a judgment revoking the first judgment issued by Section III, considering legitimate the installation of cameras in the context of the facts submitted for consideration.

The main arguments for revoking that judgment were as follows:

• First, the Grand Chamber considers applicable the doctrine arising from the monitoring of instant messaging in the Barbulescu case (see our post).

• Based on that doctrine, and certainly in relation to application of the traditional “proportionality test,” the Strasbourg-based court considers that the Spanish courts carefully pondered the right of the workers and of the company, without exceeding their margin of appreciation as it was a proportionate and legitimate measure: the cameras were installed in locations that were visible and accessible to the public, were only installed for 10 days and the recordings were seen by a limited number of individuals.
• Thus, the court concludes that notification was not necessary due to the existence of a reasonable suspicion of a serious breach involving considerable harm; if there had been notification, the measure would not have served its purpose.

• The court also mentioned that no complaint was filed with the Spanish Data Protection Agency and no legal action had been taken in line with the Spanish Personal Data Protection Act; we consider this to be less relevant given that the breach (or not) of a fundamental right occurs—or not—regardless of the procedural strategy followed.

As can be seen, and as we already mentioned in our article on the ECHR’s first judgment (see post), the judgment does not diverge substantially from the proportionality test that our Constitutional Court—, regarding cameras, we must acknowledge the existence of constant changes in its doctrine—has always required for any measure restricting fundamental rights, complemented by the Barbulescu doctrine issued by the ECHR itself.

However, we want to highlight that in this case, the court concludes that the installation was temporary. We understand that this element is essential when requiring the company to notify; we must remember that in relation to fixed installations, the Constitutional Court (e.g., University of Seville case) had always required there to be notification.

It is true, and if we compare the two judgments, that there is an analysis of different facts between the first judgment and the recent one.

If we had to summarize the really essential information for the purpose of the installation of video cameras, we would say that the installation of fixed cameras continues to require the information regarding that installation to be provided, while a temporary installation, depending on the proportionality test, could justify no information being provided.

A final reflection relates to the approval of the Spanish Act on Data Protection and Guarantee of Digital Rights (“LOPDGDD”), in that the facts tried occurred before the entry into force of the act. In particular, we highlight that article 89 LOPDGDD specifically regulates the installation of video surveillance cameras in the workplace and establishes, as a general rule, the employer’s obligation to inform the workers expressly, clearly and concisely about the installation of video surveillance systems, without including in its regulation the classic distinction between permanent, temporary and hidden cameras. The only exception to the obligation to inform the workers—and this is a new development regarding the right to information in the General Data Protection Regulation, which does not contemplate exceptions—exists in cases in which images capture the obvious commission of an “unlawful act” (a term that could lead to misunderstandings, as is shown by the current ECHR judgment which uses the term “criminal acts” at all times), in which case it is enough to have informed the workers on the information boards.

In any case, and apart from this interpretative issue, the ECHR’s judgment raises a greater challenge: apart from the cases of commission of unlawful acts, will our courts recognize a margin for the installation of video surveillance cameras without compliance with the duty to inform? We will be following this matter closely.