Can you use hidden video cameras for employee monitoring? ECHR decides there is no violation of the right to privacy in a case concerning employee monitoring by using hidden cameras placed in a supermarket 

On October 17, 2019, the European Court of Human Rights (“ECHR”) decided there has been no violation of Article 8 of the European Convention of Human Rights (“Convention”) - Right to respect for private and family life in a case concerning the placing of hidden surveillance cameras, in order to monitor the employees working in a supermarket. Such cameras were placed with the purpose to identify the employees that were involved in theft crimes. 

ECHR decides there is no violation of the right to privacy in a case concerning employee monitoring by using hidden cameras placed in a supermarket

On October 17, 2019, the ECHR decided in the case of Lopez Ribalda and others vs. Spain that the introduction by an employer of a video-surveillance measure in a low privacy expectation place (i.e., supermarket), without the employees’ knowledge, has been made within the limits imposed by Article 8 of the Convention.

Like any other previous case law of the ECHR, which analyses the legitimate interest of the employer “against” the rights and freedoms of its employees, this case also presents particular importance from the perspective of determining each time and on a case by case basis:

• the necessity,
• the proportionality and
• the subsidiarity of implementing similar measures, accompanied by adequate and sufficient safeguards.

In this case, the ECHR took the following view with respect to addressing specific factors assessed in deciding whether a measure is or not found within the limits of Article 8:

1.    Expectation of privacy

In assessing the proportionality of a video-surveillance measure, it is necessary to distinguish the various places in which the monitoring was carried out, in light of the protection of privacy that an employee could reasonably expect. As such, the privacy expectation of employees is higher in places that are private by nature –e.g., toilets, cloakrooms, and other closed areas such as offices.

In places visible or accessible the general public, like in a supermarket, the expectation of privacy is manifestly lower.

2.    Duration of the hidden video monitoring

The measure lasted for a specific 10 days’ period and ceased as soon as the employees responsible had been identified.

The length of the monitoring was in this case very limited.

3.    Limited access to such recordings  

Only the supermarket manager, the company’s legal representative and the union representative viewed the recordings obtained through the video-surveillance before the employees have been informed.

The intrusion into the employees’ privacy did not attain in this case a high degree of seriousness.

4.    Consequences of the hidden video monitoring to the employees

Albeit the consequences were significant (as the employees were dismissed on the basis of recordings obtained by the video-surveillance), the video-surveillance and the recordings were not used by the employer for any subsequent purposes other than to trace those responsible for the recorded losses of goods and to take disciplinary measures against them.

5.    Proving by the employer of legitimate reasons to justify such hidden monitoring and assessing necessity, proportionality and subsidiarity thereof

The existence of reasonable suspicion that serious misconduct has been committed and the extent of loses in this case led the ECHR to note that they appear to constitute weighty justification for the employer to adopt a covert surveillance measure.

In the circumstances of the case, there were no other means by which to fulfil the legitimate aim pursued.

6.    Informing the data subjects of the installation of the hidden video-surveillance cameras, as part of the safeguards to be provided to the employees

The provision of information with respect to the hidden video monitoring to any staff member might have defeated the purpose of the video-surveillance (which was actually to discover those responsible for the thefts but also to obtain evidence of use in disciplinary proceedings against them).

The ECHR pointed out that the provision of information to the individual being monitored and its extent is just one of the criteria to be taken into account in order to determine the proportionality of a measure of this kind in a given case. Therefore, assessing the safeguards deriving from other criteria will be all the more important.

To sum up, placing hidden video cameras without informing employees may not be interpreted as a violation of the right to privacy if there are serious indications of theft, and if such cameras are placed in an area with low privacy expectations. Moreover, such surveillance should be limited only to what is necessary in terms of time and individuals accessing the recordings, and represent the only means of identifying the individuals responsible.