ECHR judgment of 09 January 2018 in the case of Lopez Ribalda and Others v. Spain (application No. 1874/13).
In 2013, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Spain.
In the case, the applicants successfully complained about the establishment of a hidden video surveillance system carried out by the employer behind the cashiers in the store, on violation of their right to privacy. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case did not violate the requirements of article 6, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants worked as cashiers in a supermarket. In order to verify the shortage, the employer installed a surveillance system in the store that included visible cameras (reported to the applicants) and hidden (which the applicants were not notified about). The applicants were dismissed after they could see that they were stealing goods on records from video cameras. At the Court, the applicants alleged, inter alia, that the latent video surveillance installed by their employer violated their right to privacy guaranteed by Article 8 of the Convention.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. Latent video surveillance of employees at their workplaces should be seen as a significant intervention in their privacy. It allows you to obtain recorded and reproduced documentary data about the behavior of employees at their workplace, which, being bound by the obligations of their employment contract, employees can not avoid. Accordingly, the measures addressed have affected the "private life" of the applicants.
Although the purpose of Article 8 of the Convention is mainly to protect a person from arbitrary interference by public authorities, it does not oblige the State simply to refrain from such interference: in addition to this basic negative obligation, positive commitments may also result from the need to effectively respect the right to privacy. Such obligations may include taking measures aimed at ensuring the observance of private life, even in the sphere of relations between several people. Thus, the Court must consider whether the authorities of the respondent State have achieved, in the light of their positive duty under Article 8 of the Convention, a fair balance between the applicants' right to respect for their private life and the interest of their employer to protect their organizational and managerial rights, as well as to the public interest in the form of proper administration of justice.
Hidden video surveillance was applied after the supermarket controller established the fact of shortage, which caused a reasonable suspicion of theft, which could have been committed by applicants, other employees and visitors to the store. The obtained visual data was also related to the storage and processing of personal data, closely related to the sphere of private life of individuals. This material was then processed and studied by several people acting in the interests of the employer of the applicants (including the trade union representative and the legal representative of the company), and this occurred before the applicants were informed of the existence of the records.
Legislation applied at the time of the events in question contained special provisions on the protection of personal data. As domestic courts recognized, the employer of the applicants failed to comply with the obligation to inform objects collecting information on the existence of ways to collect and process their personal data, as required by domestic law. In addition, the Spanish authorities acknowledged that the employees were not informed of the installation of a concealed video surveillance system aimed at the cashier's counter, or of their rights under the Personal Data Protection Act.
Despite this, the domestic courts considered that the measures applied were justified (as there was a reasonable suspicion of theft), met the stated legitimate aim, were necessary and proportionate, since there were no similar effective ways to protect the rights of the employer that would provide less interference with the law applicants for the respect of their private life.
The circumstances of the present case differed from the case considered in the Judgment of the European Court in the case of Karin Köpke v. Germany (dated October 5, 2010, complaint No. 420/07). In the present case, the legislation in force clearly established that anyone who collected personal data had to inform the data collection subjects about the ways of collecting and processing their personal data. In a situation where the right of each data subject to be informed of the existence of hidden video surveillance, its objectives and mode of implementation was clearly regulated and protected by law, the applicants could reasonably expect respect for their right to privacy. Furthermore, in the present case, unlike the case of Karin Kepke v. Germany, the establishment of hidden surveillance was not preceded by the existence of a well-founded suspicion of the applicants, and therefore the video surveillance was not directed solely against the applicants, but for all personnel working for the cash stands, during the weeks, with no time limit and during the whole working time. In the case of Karin Kepke v. Germany, the observation was limited to the deadline, it was carried out for two weeks, and only two officers were monitored. However, in the present case, the decision to take surveillance measures was based on a general suspicion of all shop workers in view of the shortcomings identified by the controller.
Consequently, the Court could not agree with the opinion of domestic courts on the conformity of measures taken by the employer with a legitimate aim in the form of protecting the employer's interest in ensuring the security of his property rights.
The case involved violations of the requirements of Article 8 of the Convention (adopted by six votes "for" at one - against).
The Court also ruled unanimously that there had been no violation of Article 6 § 1 of the Convention, in particular regarding the use of evidence obtained in violation of Article 8 of the Convention.
In application of Article 41 of the Convention, the Court awarded each applicant 4,000 euros (EUR 4,000) in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.