Background

Placement of cameras and prior information

The Court has ruled on the case of a supermarket owned by Mercadona, where the managers of the company, after having realized that there were some irregularities regarding the sales and the amount of product stored decided to place a video surveillance system by installing some cameras in visible places and others out of sight. Then the company informed the employees and their representatives about the installation of the first but not the latter. The cameras placed out of sight were over the cash registers. Article 5 of the Spanish Organic Law on the Protection of Personal Data (LOPD) and Instruction 1/2006 of the Data Protection Agency requires compliance with the duty of prior information in both cases, that is, regarding the cameras placed in visible places as well as those hidden and intended to stay permanently.

Result of the inquiry

The company found out that a group of employees of the supermarket did not charge some products when they or their co-workers were the ones who bought them. The company, based on the recordings made, proceeded to dismiss the employees involved. Some of them signed a document where they recognized the facts in exchange for avoiding criminal actions by the company (document that, by the way, was ratified as valid by the High Court of Justice of Catalonia in another judgment). Other employees challenged the dismissal, but it was declared as a lawful dismissal by both, the Labor Court and the High Court of Justice of Catalonia which admitted as valid and proportionate the evidence obtained through the recordings made with the cameras installed. The appeals lodged were rejected by the Supreme Court and by the Constitutional Court.

The ECHR, with 6 votes for and 1 against, ruled against the Kingdom of Spain since it considered that Art. 8 of the European Convention on Human Rights (right to privacy) had been breached. According to the ECHR, the evidence submitted did not comply with the proportionality condition required by the Spanish Constitutional Court since it breached Art. 18 of the Spanish Constitution.

The Judgments

Proven facts in the judgments of the Spanish courts

The Judgment of the High Court of Justice considered as proven the following facts:

- two types of cameras were installed, some of them outside, in visible places, to monitor the entrances to the establishment, and others inside, hidden, centered in on the cashiers.

-the employees and their representatives were informed of the existence of the visible cameras but not of the hidden ones.

-the employees were not informed of their rights related to the protection of personal data, access to information, rectification or cancellation.

- The theft of products was proved and the dismissals were declared lawful, as the evidence provided was considered valid.

The ECHR’s Judgment

The ECHR studies the possible violation of articles 6 and 8 of the European Convention on Human Rights (CEDH) for the installation of hidden cameras. The appellants allege that not only were they not duly informed of the installation of said cameras, but also that those cameras were intended to stay permanently for an indefinite period of time. In addition, it must be noted that the legal representatives of the Kingdom of Spain did not oppose the aforementioned violation, but rather they argued that the cameras were installed by a private company and therefore the Spanish State should be held harmless. The ECHR’s judgment concludes that due to the installation of some hidden cameras intended to stay permanently, other employees (apart from those allegedly involved in the theft) were indiscriminately filmed without prior information. Therefore, there had been an unlawful invasion of privacy and, as a result, the evidence was considered unconstitutional since it was a violation of Article 18 of the Spanish Constitution. Consequently, the recordings submitted should never have been taken into account for the resolution of the case.

Validity of previous case-law? Amendment to the precedent based on the judgements of the Spanish Constitutional Court so far?

The current case-law (including the judgement of the Spanish Constitutional Court, 39/2016 "Bershka") requires, for the installation of fixed cameras, the compulsory prior information specifying the purpose of the placement of said devices. Therefore, no cameras recording indiscriminately and permanently can be installed without providing this prior information. It would be otherwise if it were about an exclusive, specific and temporary monitoring of the personnel suspected of the commission a serious labor infraction once verified the existence of a well-founded suspicion of the commission of such malfeasance. In such case - which is not the same as the case analyzed herein "Lopez Ribalta and others" - that prior information or a specific signaling of the existence of those cameras are not required, as already stated in the ruling of the ECHR in the case known as "Kopke", where the temporary installation of hidden cameras for surveillance purposes in a particular case was found fair and proportionate:

"The invasion of the claimant’s privacy was limited to what was necessary to achieve the objectives pursued by the video surveillance. The national courts had further considered that the employer’s property rights protection could only be guaranteed by collecting evidence in order to demonstrate the criminal conduct of the claimant in judicial proceedings. This has also served the public interest in the proper administration of justice. In addition, the covert video surveillance of the claimant had served to dispel the suspicion about other employees. Besides, there had been no other equally effective means of protecting the property rights of the employer that would have violated to a lesser extent the claimant's right to privacy. The inventory did not clearly link the discovered losses with a particular employee. The surveillance by superiors or colleagues or the open video surveillance did not have the same prospects of success in the discovery of an undercover theft. "

Therefore, our conclusion is that the case-law established by the Spanish Constitutional Court is not different from the one resulting from the rulings of the ECHR, as to our understanding the possibility of monitoring without prior information remains in force as long as the placement of cameras complies with the principles of suitability, proportionality and reasonableness and when the above-mentioned requirements are met, that is to say, the existence of a well-founded suspicion, and the temporary and, as far as possible, exclusive  surveillance (that is, not indiscriminate) of the employees who are under suspicion.