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Two recent decisions of the European Court of Human Rights (ECHR) have looked at a worker's right to privacy under Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life. In such cases, the ECHR must examine whether the member state concerned has struck a fair balance between workers' rights and those of the employer.
The first case (Antović and Mirković v Montenegro) concerned a complaint of invasion of privacy made by two professors at the University of Montenegro's School of Mathematics following the installation of video surveillance in the auditoriums where classes were held. The data collected was to be stored for a year. The decision to install the cameras specified that the purpose of the measure was to 'ensure the safety of property and people, including students, and the surveillance of teaching'. However, the professors disputed that the measures would improve safety and there were in any case other ways of achieving those aims. They also argued that they had not been notified in writing before the surveillance commenced. Following an investigation, the Personal Data Protection Agency ordered the University to remove the cameras from the auditoriums on the basis that the surveillance was not in accordance with the Personal Data Protection Act.
The professors then sought compensation, submitting that they had no control over the information collected by the surveillance and it constituted an interference in their private lives, contrary to Article 8, which was not provided for by any piece of legislation and was therefore illegal. Their claims were rejected by the domestic courts on the ground that the auditoriums where they taught were public areas and so the right to privacy was not at issue. However, the ECHR noted that it had previously found that private life might include professional activities and held, by four votes to three, that Article 8 had been violated in this instance.
The second case (Lόpez Ribalda and Others v Spain) concerned covert surveillance of workers in a Spanish supermarket. This was carried out in order to investigate possible theft after the store manager noticed discrepancies between stock levels and sales. The employer had installed both visible and hidden cameras, but the workers were only told about the ones they could see. Five members of staff were dismissed after they were caught on camera stealing and helping customers and other members of staff to steal. They claimed that the covert surveillance was a breach of their right to privacy, but the domestic courts found that interference with an employee's right to privacy was justified as being an appropriate, necessary and proportionate means of achieving a legitimate aim in a situation where there were substantiated suspicions of theft. Nor was there any other equally effective means of protecting the employer's rights which would have interfered less with the workers' right to respect for their private lives.
The ECHR disagreed, however. Spanish law requires that individuals be informed about the processing and storage of their personal data and the workers in this case had not been told. Furthermore, the employer's rights could have been protected in a less intrusive manner. In the ECHR's view, the domestic courts had failed to achieve a fair balance between the respective rights of those concerned, and the workers' treatment had been a breach of Article 8.